DISTRIBUTION AGREEMENT
March __, 2003
Excelsior Buyout Investors, LLC
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
This is to confirm that, (i) in consideration of the agreements of
EXCELSIOR BUYOUT INVESTORS, LLC (the "Company"), a Delaware limited liability
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"), hereinafter contained, XXXXXXX XXXXXX & CO., INC. (the
"Distributor") has agreed to serve as the distributor of the units of beneficial
interest (the "Units") of the Company for the period of this Agreement.
1. Description of the Offering and Sale of Units.
1.1 Pursuant to the terms of this Agreement, on the basis of the
representation, warranties, and covenants herein contained, but
subject to the terms and conditions herein set forth, the Company
hereby appoints Distributor, and Distributor agrees to serve, as
agent for the offer and sale of the Units of the Company to be
offered and sold in the offering (the "Offering") described below.
The right granted to the Distributor to place orders for Units with
the Company shall be non-exclusive. The Company hereby acknowledges
that the Distributor may render distribution and other services to
other parties, including other investment companies.
1.2 The terms of the Offering are set forth in the Company's effective
registration statement on Form N-2 filed with the Securities and
Exchange Commission (the "SEC") and the prospectus included
therein relating to the Units. Such (i) registration statement
(as amended, if applicable) and (ii) prospectus constituting a
part thereof, as from time to time amended or supplemented
pursuant to the Securities Act of 1933, as amended (the "1933
Act"), the 1940 Act, or otherwise, are hereinafter referred to as
the "Registration Statement" and the "Prospectus," respectively,
except that if any prospectus or statement of additional
information, or amendment or supplement thereto, shall be
provided to the Distributor by the Company for use in connection
with the offering of the Units that differs from the Prospectus
on file at the SEC at the time the Registration Statement becomes
effective (whether or not such prospectus or amendment or
supplement thereto is required to be filed by the Company
pursuant to Rule 497 of the 1933 Act), the term "Prospectus"
shall refer to such revised prospectus and statement of
additional information as so amended
or supplemented from and after the time it is first provided to the
Distributor for such use.
1.3 The initial closing of the Offering is expected to occur on or about
the fifth business day after receipt of subscriptions for at
least $50,000,000 (the "Initial Closing Date") and the Company
may continue to offer the remaining unsold Units and accept
subscriptions for such Units from time to time at subsequent
closings until September 30, 2003, subject to extension by the
Company's Board of Managers until December 31, 2003 (the
"Subsequent Closing Dates," and together with the Initial Closing
Date, the "Closing Dates"). Subsequent Closings of the Company
will be held at the discretion of the Company.
1.4 The Distributor may offer the Units through any dealer or bank that
has entered into a selling agreement with the Distributor ("Selling
Agents"). The Selling Agents appointed by the Distributor may offer
Units only pursuant to properly completed and executed Subscription
Agreements and related documents provided to the Selling Agent by
the Company from time to time and in accordance with the terms of
the Prospectus. To the extent that the Distributor offers Units
directly, rather than through Selling Agents, it agrees that it will
do so in the manner required of Selling Agents as set forth in
Sections 1.6, 1.8, 2.2, 2.4 2.7, 2.8 and 2.10 of the form of Selling
Agent Agreement attached hereto as Appendix A and that it shall have
the duties and obligations to the Company as a Selling Agent
thereunder and the Company agrees that the Distributor shall be
entitled to the respective rights and benefits of a Selling Agent
afforded by the Company set forth therein. Any checks should be made
payable to PNC Bank, Delaware (the "Escrow Agent") and must be
transmitted by Selling Agents directly to PFPC Inc. (the "Escrow
Administrator"), by noon of the next business day after receipt.
1.5 Neither the Distributor, the Selling Agents nor any other person is
authorized to give any information or make any representations other
than those contained in the Registration Statement, Prospectus or in
any Sales Material (as defined in Section 2.2 below) furnished by
the Company for use in the sale of the Units.
1.6 All subscriptions by the Distributor, if any, and the Selling Agents
will be subject to confirmation and acceptance by the Company, in
whole or in part. The Company reserves the right to accept or reject
any such subscription. The Company shall have full authority to take
such actions as it may deem advisable with respect to all matters
pertaining to the Offering.
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1.7 The Distributor shall be an independent contractor and neither the
Distributor nor any of its directors, officers or employees as such,
is or shall be, solely by reason of this Agreement, an employee of
the Company.
1.8 No Units shall be offered by either Distributor or the Company under
any of the provisions of this Agreement and no subscriptions for
the purchase or sale of Units hereunder shall be accepted by the
Company if and so long as the effectiveness of the Registration
Statement then in effect or any necessary amendments thereto
shall be suspended under any of the provisions of the 1933 Act,
or if and so long as a current prospectus as required by
Section 10(b) of the 1933 Act is not on file with the SEC.
2. Services as Distributor.
2.1 The Distributor will act as agent for the distribution of the Units
covered by the Registration Statement and Prospectus of the
Company in effect under the 1933 Act, and will solicit orders for
the purchase of Units upon the terms set forth herein and, if
applicable, in Appendix A, during the term of this Agreement.
All purchases by the Distributor shall be made only to cover
orders placed with the Distributor.
2.2 The Distributor will be responsible for principal review of all
Sales Materials (as hereinafter defined) furnished to it by the
Company to ensure that such materials comply in all material
respects with all applicable rules and regulations of the SEC, the
National Association of Securities Dealers, Inc (the "NASD"), any
other regulatory authority having competent jurisdiction, any states
having such rules and regulations. The Distributor will file all
Sales Material with the NASD, SEC and such relevant regulatory
authority and states as required by the rules and regulations of the
NASD, the SEC and such regulatory authority and states,
respectively. Notwithstanding the foregoing, the Distributor assumes
no responsibility or liability for the representations or any
omissions contained in (i) the Prospectus relating to the Company
and the Units or (ii) any Sales Materials furnished or approved by
the Company that has not been submitted by the Company to the
Distributor for its review pursuant to this Section 2.2. "Sales
Material," as used herein, shall include, without limitation,
promotional materials, sales literature, advertisements, press
releases, announcements, circulars, research reports, market
letters, performance reports or summaries, form letters, posters,
signs and other similar materials, whether in print, hypertext,
video, audio or other media, and any items derived from the
foregoing, and including sales materials intended for wholesale use
(i.e., broker/dealer use only) or retail use.
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2.3 With the exception of (i) listings of product offerings and
(ii) materials used by the Distributor on an internal basis only,
the Distributor agrees not to furnish or cause to be furnished to
any third parties or to display publicly or publish any Sales
Materials, except such Sales Materials relating to the Company as
may be provided to the Distributor by the Company and, pursuant
to Section 2.2 hereof, reviewed and filed by the Distributor.
The Company agrees not to furnish or cause to be furnished to any
third parties or to display publicly or publish any Sales
Material referring to the Distributor or its trademarks, except
such Sales Materials as may be approved for distribution by the
Distributor upon the Company's request.
2.4 All activities by Distributor and its partners, agents, and
employees as distributor of the Units shall comply materially with
all applicable federal and state laws, rules and regulations,
including, without limitation, all rules and regulations made or
adopted pursuant to the 1940 Act by the SEC or any securities
association registered under the Securities Exchange Act of 1934 and
the USA Patriot Act.
2.5 The Distributor (i) is a financial institution required to have an
anti-money laundering program under the Bank Secrecy Act, as
amended; (ii) is acting on behalf of its customers in its
dealings with the Company; (iii) has established and will
maintain policies and procedures reasonably designed to comply
with the regulations administered by the U.S. Department of
Treasury's Office of Foreign Assets Control; and (iv) has
established and will maintain policies and procedures reasonably
designed to prevent and detect money laundering, which policies
and procedures adhere to the requirements of all applicable laws,
including the Bank Secrecy Act, as amended.
3. Representations and Warranties of the Company. The Company represents,
warrants and covenants to the Distributor that:
3.1 The Company is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of
Delaware. The Company has all requisite power and authority to
own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus.
The Company is duly qualified and in good standing as a foreign
corporation in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification
necessary.
3.2 The Company has filed with the SEC a Registration Statement on Form
N-2 (File No. 333-102578) and a related Prospectus for the
registration of the
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Units under the 1933 Act, and the rules and regulations of the SEC
under the 1933 Act and the 1940 Act (the "Rules and Regulations"),
and has filed such amendments to such Registration Statement on Form
N-2, if any, and such amended or supplemented preliminary
prospectuses as may have been required to the date hereof. The
Company will prepare and file such additional amendments to the
Registration Statement and such amended or supplemented Prospectuses
as may hereafter be required.
3.3 At the time the Registration Statement becomes effective (the
"Effective Date"), and at all times subsequent thereto, up to and
including the last Closing Date, the Registration Statement and
the Prospectus (i) did or will comply in all material respects,
with the 1933 Act, 1940 Act and the Rules and Regulations
thereunder; (ii) did or will contain all statements required to
be stated therein in conformity with the 1933 Act, 1940 Act and
the Rules and Regulations thereunder; (iii) did not or will not
contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in
order to make the statements therein not misleading. The
foregoing representations and warranties in this Section 3.3 do
not apply to any statements or omission made in reliance on and
in conformity with information relating to the Distributor
furnished in writing to the Company by the Distributor
specifically for inclusion in the Registration Statement or
Prospectus.
3.4 No stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are
pending before or have been threatened by the SEC.
3.5 The Company is registered with the SEC as a non-diversified
closed-end management investment company under the 1940 Act. No
order of suspension or revocation of such registration has been
issued or proceedings therefor initiated or, to the knowledge of the
Company, threatened by the SEC.
3.6 The operations of the Company are in compliance in all material
respects with the provisions of the 1940 Act applicable to the
Company and the Rules and Regulations.
3.7 The Units have been duly authorized and, when issued and delivered
in accordance with the terms of this Agreement, will be validly
issued and will represent limited liability company interests in the
Company. There are no authorized securities of the Company other
than the Units. The Units conform as to legal matters to the
descriptions thereof contained in the Registration Statement and the
Prospectus.
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3.8 With the exception of (i) listings of product offerings and (ii)
materials used by the Company on an internal basis only, the
Company agrees not furnish or cause to be furnished to any third
parties or to display publicly or publish any Sales Materials,
except such Sales Materials that, pursuant to Section 2.2 of this
Agreement, been reviewed and approved by the Distributor, and
filed with such regulatory authorities as may be required by
applicable laws, rules and regulations.
3.9 Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus and prior to any
Closing Date, except as set forth in or contemplated by the
Registration Statement and the Prospectus, there has not been any
material adverse change in the business, business prospects,
condition (financial or otherwise) or results of operations of the
Company, arising for any reason whatsoever.
3.10 There are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the
Company or any of its officers in their capacity as such, before or
by any federal or state court, commission, regulatory body,
administrative agency or other governmental body, international or
domestic, wherein an unfavorable ruling, decision or finding might
materially and adversely affect the Company or its business,
properties, business prospects, condition (financial or otherwise)
or results of operations.
3.11 The Company has full power and authority to enter into and perform
its obligations under this Agreement, including its obligations of
indemnification as set forth in Section 8 of this Agreement, and
this Agreement constitutes the valid and legally binding agreement
of the Company, enforceable against the Company in accordance with
its terms.
3.12 This Agreement, the Investment Advisory Agreement between the
Company and U.S. Trust Company, the Administration, Accounting and
Investor Services Agreement between the Company and PFPC Inc., the
Custodian Agreement between the Company and PFPC Trust Company, and
the Operating Agreement comply with all applicable provisions of the
1940 Act, and all approvals of such documents required under the
1940 Act, by the holders of the Units of the Company and the Board
of Managers of the Company (the "Board"), have been obtained.
3.13 There are no material restrictions, limitations or regulations with
respect to the ability of the Company to invest its assets as
described in the Registration Statement or Prospectus, other than
described herein.
3.14 This Section 3 shall survive the termination of this Agreement.
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4. Agreements of the Company.
4.1 The Company will not, either prior to the Effective Date or
thereafter during such period as the Prospectus is required by law
to be delivered in connection with sales of the Units, file any
amendment or supplement to the Registration Statement or the
Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise,
unless a copy thereof shall first have been submitted to the
Distributor within a reasonable period of time prior to the filing
thereof and the Distributor shall not have objected thereto in good
faith; provided however, that nothing contained in this Agreement
shall in any way limit the Company's right to file at any time such
amendments to the Registration and/or supplements to the Prospectus,
of whatever character, as the Company may deem advisable, such right
being in all respects absolute and unconditional. The Distributor
may but shall not be obligated to propose from time to time such
amendment or amendments to the Registration Statement and such
supplement or supplements to the Prospectus as, in the light of
future developments, may, in the opinion of the Distributor's
counsel, be necessary or advisable. Subject to Section 4.4, if the
Company does not so amend the Registration Statement and/or so
supplement the Prospectus within fifteen days after receipt by the
Company of a written request from Distributor to do so, Distributor
may, at its option, terminate this Agreement.
4.2 The Company will notify the Distributor promptly, and will confirm
such advice in writing, (i) when the Registration Statement has been
amended or supplemented and when any post-effective amendment
thereto becomes effective; (ii) of any request by the SEC for
amendments or supplements to the Registration Statement or the
Prospectus or for additional information, and of all action by the
SEC with respect to any amendment to any Registration Statement or
Prospectus that may be filed from time to time with the SEC; (iii)
of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose or the threat thereof; (iv) of the
happening of any event that in the judgment of the Company makes any
statement made in the Registration Statement or the Prospectus
untrue or that requires the making of any changes in the
Registration Statement or the Prospectus in order to make the
statements therein, in light of the circumstances in which they are
made, not misleading; and (v) of receipt by the Company or any
representative or attorney of the Company of any other communication
from the SEC relating to the Company, the Registration Statement,
any preliminary prospectus, or the Prospectus. For purposes of this
section, informal requests by or acts of the SEC staff shall not be
deemed actions of or requests by the SEC.
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4.3 The Company will comply with all the provisions of any undertakings
contained in the Registration Statement.
4.4 On the Effective Date, and thereafter from time to time, the Company
will deliver directly to the Distributor and Selling Agents,
without charge and in a timely manner, as many copies of the
Prospectus and any printed supplemental material as the
Distributor or Selling Agents may reasonably request. If during
such period of time any event shall occur that in the judgment of
the Company or the Distributor should be set forth in the
Prospectus in order to make any statement therein, in the light
of the circumstances under which it was made, not misleading, or
if it is necessary to supplement or amend the Prospectus to
comply with law, the Company will forthwith prepare and duly file
with the SEC an appropriate supplement or amendment thereto, and
will deliver to the Distributor and Selling Agent, without
charge, such number of copies thereof as the Distributor and
Selling Agent may reasonably request. The Company acknowledges
and agrees that it has the sole responsibility under this Section
4.4 to provide copies of the Prospectus and any printed
supplemental material directly to the Selling Agents.
4.5 At its own expense, the Company agrees to prepare, execute, and file
any and all documents and to take all actions that may be
reasonably necessary in connection with the qualification of the
Units for sale in such states as Distributor may designate.
Concurrent with the effectiveness of the Registration Statement,
the Company shall provide to the Distributor in writing a list of
those states and other jurisdictions in which the Units are
qualified for sale, together with restrictions and requirements
applicable thereto, and the Distributor will sell Units only in
such states or jurisdictions and in compliance with such
restrictions and requirements.
5. Payment of Expenses. (a) The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including,
but not limited to, expenses relating to (i) the printing and filing of
the Registration Statement and Prospectus as originally filed and of
each amendment thereto; (ii) the preparation, issuance and delivery of
temporary or permanent certificates for the Units to the Distributor;
(iii) the fees and disbursements of the Company's counsel, accountants,
and other service providers; (iv) the qualification of the Units under
securities laws in accordance with the provisions of Section 4.5 of
this Agreement, including filing fees; (v) the printing and delivery to
the Distributor of copies of the Registration Statement as originally
filed and of each amendment thereto, and delivery to the Distributor
and Selling Agents of the Prospectus and any amendments or supplements
thereto; (vi) the preparation and mailing to shareholders of the
Prospectus and Sales Materials; and (vii) the printing and filling of
the Sales Material with respect to any filings with the NASD.
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(b) The Company will be responsible for all of the out-of-pocket
expenses of the Distributor in consideration for the Distributor's services
performed hereunder. In the event the Offering is terminated as described in the
Prospectus, the Distributor will only be entitled to reimbursement of its
expenses actually incurred in connection with the Offering until its
termination.
6. Conditions of the Obligations of the Distributor. The obligations of the
Distributor are subject to satisfaction of each of the following
conditions:
6.1 All of the representations and warranties of the Company contained
in this Agreement shall be true and correct in all material respects
at each Closing Date with the same force and effect as if made on
and as of the Closing Date, and all covenants and agreements herein
contained to be performed on the part of the Company, and all
conditions herein to be fulfilled or complied with by the Company,
at or prior to each Closing Date, shall have been duly performed,
fulfilled and complied with.
6.2 The Registration Statement shall have become effective not later
than 5:00 p.m., Eastern Time, on the date of this Agreement or at
such later date and time as the Distributor may approve in writing.
6.3 The Company shall furnish to the Distributor such documents and
certificates as the Distributor may reasonably request, including
documents and certificates relating to the accuracy and completeness
of any statement in the Registration Statement or Prospectus.
If any condition specified in this Section 6 shall not have been fulfilled when
and as required to be fulfilled, this Agreement may be terminated by the
Distributor by notice to the Company at any time at or prior to any Closing
Date, and the Company shall reimburse the Distributor for all of its
out-of-pocket expenses, including fees and disbursements of counsel for the
Distributor.
7. Indemnification.
7.1 The Company agrees to indemnify, defend and hold the Distributor,
its directors, officers, employees, and agents, and any person who
controls the Distributor within the meaning of Section 15 of the
1933 Act, free and harmless from and against any and all losses,
claims, demands, liabilities and expenses (including the costs of
investigating or defending such losses, claims, demands or
liabilities and any attorney's fees and expenses incurred in
connection therewith) which the Distributor, its directors,
officers, employees, and agents, or any such controlling person may
incur (i) under the 1933 Act, the 1940 Act or otherwise, arising out
of or based upon any untrue statement, or alleged untrue statement,
of a material fact contained in (a) the Registration Statement of
the Company (including any
9
Prospectus that is part of any such Registration Statement) or any
amendment or supplement thereto, and (b) any Sales Materials
relating to the Company provided to the Distributor, or approved, by
the Company (whether or not the Distributor has approved the use of
such Sales Materials) or arising out of or based upon any omission,
or alleged omission, to state a material fact required to be stated
in any Registration Statement, Prospectus, or Sales Materials or
necessary to make the statements therein not misleading; and (ii) as
a result of any breach by the Company of any representation,
warranty or covenant made by the Company hereunder; provided,
however, that the Company's agreement to indemnify Distributor, its
directors, officers employees, agents, or and any such controlling
person (i) shall not be deemed to cover any losses, claims, demands,
liabilities or expenses arising out of any untrue statements or
representations contained in any Registrations Statement or
Prospectus as are furnished in writing to the Company by Distributor
expressly for use therein; and (ii) shall not be deemed to cover any
liability to the Company to which the Distributor would otherwise be
subject by reason of willful misfeasance, bad faith, and gross
negligence in the performance of its duties, or any reason of the
Distributor's reckless disregard for its obligations and duties
under this Agreement.
7.2 Distributor agrees to indemnify, defend and hold the Company, its
managers, officers, and agents, and any person who controls the
Company within the meaning of Section 15 of the 1933 Act, free and
harmless from and against any and all losses, claims, demands,
liabilities and expenses (including the costs of investigating or
defending such losses, claims, demands, liabilities or expenses and
any attorney's fees and expenses incurred in connection therewith)
which the Company, its managers, its officers, its agents or any
such controlling person may incur under the 1933 Act, 1940 Act or
otherwise, but only to the extent that such losses, liabilities or
expense incurred by the Company, its managers, its officers or such
controlling person resulting from such claims or demands, shall
arise out of or be based upon any untrue statement of a material
fact contained in information furnished in writing by Distributor to
the Company and used in the answers to any of the items of the
Registration Statement or in the corresponding statements made in
the Prospectus.
7.3 If a party seeks indemnity under this Section 7 (the "Indemnified
Party"), the Indemnified Party shall, promptly, after receipt of
notice of commencement of any action, suit or proceeding against
the Indemnified Party, give written notice of the commencement of
such action, suit or proceeding to the other party (the
"Indemnifying Party"), but the omission so to notify the
Indemnifying Party shall not relieve the Indemnifying Party from
any obligation it may otherwise have, except to the extent that
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it is actually harmed by such an omission. In case such notice
of any such action shall be so given, the Indemnifying Party
shall be entitled to participate at its own expense in the
defense, or, if it so elects, to assume the defense of such
action, in which event such defense shall be conducted by counsel
(satisfactory to the Indemnified Party, which approval shall not
be unreasonably withheld) chosen by the Indemnifying Party;
provided, however, that the Indemnifying Party shall not have the
right to assume the defense of any action in which the named
parties (including any implied parties) include both parties and
in which counsel to either party has advised that there may be
legal defenses available to one party that are in conflict with
those available to the other party. If the Indemnifying Party
elects to assume the defense of such action and it has the right
to do so, the Indemnified Party shall bear the fees and expenses
of any additional counsel it retains. If the Indemnifying Party
does not elect to assume the defense of such action and in cases
where either (i) the Indemnified Party does not approve of
counsel chosen by the Indemnifying Party or (ii) separate counsel
is retained because of the availability of conflicting defenses,
the Indemnifying Party will reimburse the Indemnified Party for
the reasonable fees and expenses of any counsel retained by the
Indemnified Party. Payment (other than the reimbursement of the
Indemnified Party's legal and other related fees and expenses,
which will be payable to it upon receipt by the Indemnifying
Party of a xxxx related thereto) shall be made upon the rendering
of any final decision in such action, suit or proceeding by a
court, panel of arbitrators, administrative agency or
self-regulatory organization, or upon any settlement of any
dispute, the subject of which involves such a claim. No such
action, suit or proceeding or dispute, the subject of which
involves such a claim, shall be settled by either party without
notice to and consent by the other, which consent shall not be
unreasonably withheld.
7.4 This Section 7 shall survive the termination of this Agreement.
8. Effective Date of Agreement and Termination.
8.1 This Agreement shall become effective upon its execution and shall
continue in force until the earlier of the date that the Company
notifies the Distributor that the offer is terminated or complete or
the date set forth in the Prospectus; provided, however, that in no
case shall this Agreement remain in force beyond December 31, 2003.
8.2 This Agreement may be terminated by either party, without cause or
payment of penalty, on not more than 60 days' nor less than 30
days' written notice to the other party; provided, however, that
the Distributor may terminate this Agreement immediately by
written notice to the
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Company, without liability on the part of the Distributor to the
Company, if, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any change
or development involving a prospective change in the condition,
financial or otherwise, of the Company, taken as a whole, whether or
not arising in the ordinary course of business, that, in the
Distributor's judgment is material and adverse and would, in the
Distributor's judgment, make it impracticable to market the Units on
the terms and in the manner contemplated in the Prospectus.
9. Arbitration. In the event of a dispute between the parties relating to
or arising out of this Agreement or the parties' relationship
hereunder, the parties agree to submit the matter to arbitration in
accordance with this Section 9. In the event of such a dispute between
the parties, Arbitration will be held in San Francisco, California, in
accordance with the rules and regulations of the NASD, except, in the
event that the NASD is unwilling to accept jurisdiction of the matter,
such arbitration will be held in San Francisco, California in
accordance with the rules and regulations of the American Arbitration
Association.
9.1 If the arbitration is brought by either party, the number of
arbitrators will be three (3), and they will be selected in
accordance with the rules and regulations of the NASD or American
Arbitration Association, as appropriate. The arbitrators shall
be attorneys who are from the securities industry as defined by
the applicable arbitration rules. Any award of the arbitrators
will be limited to compensatory damages and will be conclusive
and binding upon the parties. The arbitration shall be governed
by the Federal Arbitration Act, 9 U.S.C. Sections 1-16 to the
exclusion of state laws inconsistent therewith, and judgment upon
the award may be entered in any court having jurisdiction.
9.2 The prevailing party shall be entitled to an award of all costs in
connection with the arbitration, including reasonable attorneys
fees, from the panel. Any costs, fees or taxes involved in enforcing
the award shall be fully assessed against and paid by the party
resisting enforcement of the award.
9.3 Nothing in this Section 9 will prevent either party from resorting
to judicial proceedings or otherwise for injunctive relief to
prevent serious irreparable harm or injury to the parties or others,
as applicable.
9.4 In the event that a non-party to this Agreement initiates legal
proceedings (including, but not limited to, an arbitration claim or
a claim in state or federal court) against either party relating to
or arising out of this Agreement, each party agrees to litigate or
arbitrate in the forum in which such legal proceeding is brought.
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10. Miscellaneous.
10.1 This Agreement may be amended only upon the mutual written agreement
of the parties hereto. This Agreement shall be in substitution of
any prior agreement between the parties hereto regarding the
distribution of the Units.
10.2 This Agreement shall automatically terminate in the event of its
assignment. The term "assignment" shall have the meaning specified
in, and shall be construed in a manner consistent with the 1940 Act,
subject to such exemptions as may be granted by the SEC.
10.3 Notice given pursuant to any of the provisions of this Agreement
shall be in writing and, unless otherwise specified, shall be mailed
or delivered by hand and via facsimile (i) if to the Company, at the
office of the Company, 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx
00000, Attention: Xxxxxxx X. Xxxxxxxx, or (ii) if to the
Distributor, at the office of the Distributor, 000 Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxxx.
Any such notice shall be effective only upon receipt. Any notice
under Section 8 may be made by or telephone or facsimile, but if so
made shall be subsequently confirmed in writing.
10.4 If any provision of this Agreement is found by a court or agency of
competent jurisdiction to be in violation of any state or federal
law, rule or regulation, then the invalidity of such provision shall
not affect the enforceability or validity of the remaining
provisions.
10.5 This Agreement shall be governed by and construed in accordance with
the laws of the State of California applicable to the contracts made
and to be performed entirely within such state.
10.6 This Agreement may be signed in two or more counterparts with the
same effect as if the signatures thereto and hereto were upon the
same instrument.
10.7 The headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part of
this Agreement.
Please confirm that the foregoing is in accordance with your understanding
by indicating your acceptance hereof at the place below indicated, whereupon it
shall become a binding agreement between us.
Very truly yours,
13
XXXXXXX XXXXXX & CO., INC
By:---------------------------------
Name:-------------------------------
Title:------------------------------
Accepted:
EXCELSIOR BUYOUT INVESTORS, LLC
By:---------------------------
Name:-------------------------
Title:------------------------
14
APPENDIX A
Xxxxxxx Xxxxxx & Co., Inc.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
SELLING AGENT AGREEMENT
UST Securities Corp.
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000
Ladies and Gentlemen:
This is to confirm that, in consideration of the agreements hereinafter
contained, UST Securities Corp. (the "Selling Agent"), EXCELSIOR BUYOUT
INVESTORS, LLC (the "Company"), a Delaware limited liability company registered
under the Investment Company Act of 1940, as amended (the "1940 Act") and
XXXXXXX XXXXXX & CO., INC. ("Schwab"), the distributor for the Company, have
agreed that the Selling Agent shall serve as selling agent of the units of
beneficial interest (the "Units") of the Company.
1. Description of the Offering and Sale of Units.
1.1 Based on the terms of this Agreement, on the basis of the
representations, warranties and agreements herein contained, but
subject to the terms and conditions herein, Schwab, the
distributor for the Company pursuant to a Distribution Agreement
dated March __, 2003 (the "Distribution Agreement"), hereby
appoints Selling Agent to serve as a non-exclusive selling agent
for the sale and offer of the Units to be offered and sold in the
offering described below (the "Offering"), and the Selling Agent
hereby agrees to accept such appointment.
1.2 The terms of the Offering are set forth in the Company's effective
registration statement on Form N-2 filed with the Securities and
Exchange Commission (the "SEC") and the prospectus and statement
of additional information included therein relating to the
Units. Such (i) registration statement and (ii) prospectus and
statement of additional information constituting a part thereof,
each as from time to time amended or supplemented pursuant to the
Securities Act of 1933, as amended (the "1933 Act"), the 1940
Act, or otherwise, are hereinafter referred to as the
"Registration Statement" and the "Prospectus," respectively,
except that if any prospectus or statement of additional
information, or amendment or supplement thereto, shall be
provided by the Company for use in connection with the offering
of the Units that differs from the Prospectus
on file at the SEC at the time the Registration Statement becomes
effective (whether or not such prospectus or amendment or supplement
thereto is required to be filed by the Company pursuant to Rule 497
of the 1933 Act), the term "Prospectus" shall refer to such revised
prospectus and statement of additional information as so amended or
supplemented from and after the time it is first provided to the
Distributor for such use.
1.3 The initial closing of the Offering is expected to occur on or about
the fifth business day after receipt of subscriptions for at
least $50,000,000 (the "Initial Closing Date") and the Company
may continue to offer the remaining unsold Units and accept
subscriptions for such Units from time to time at subsequent
closings until September 30, 2003, subject to extension by the
Company's Board of Managers until December 31, 2003 (the
"Subsequent Closing Dates," and together with the Initial Closing
Date, the "Closing Dates"). Subsequent Closings of the Company
will be held at the discretion of the Company.
1.4 In effecting the purchase or sale of Units, the parties understand
and agree that Selling Agent shall act solely as agent for Schwab
and purchasers of Units, and that all purchases of Units shall be
initiated solely upon the instruction and order of the purchaser
thereof for such purchaser's account and under no circumstances for
the account of Selling Agent.
1.5 Neither the Selling Agent nor any other person is authorized to give
any information or make any representations other than those
contained in (i) the Registration Statement or Prospectus or (ii)
any Sales Material (as defined in Section 2.6 below) furnished by
the Company and approved by the and Schwab for use in the sale of
the Units.
1.6 Selling Agent may sell Units only pursuant to properly completed and
executed Subscription Agreements, in the form attached to the
Prospectus, and related documents provided to the Selling Agent the
Company, and in accordance with the terms of the Prospectus.
1.7 All subscriptions by the Selling Agent will be subject to
confirmation and acceptance by the Company, in whole or in part. The
Company reserves the right to accept or reject any such
subscription. The Company shall have full authority to take such
actions as it may deem advisable with respect to all matters
pertaining to the Offering.
1.8 Investors who maintain a custody account at U.S. Trust normally will
have their account debited to pay the subscription amount.
Prospective investors who do not otherwise maintain a custody
account at U.S. Trust will deposit their funds into an escrow
account in accordance with the escrow agreement among the Company,
PNC Bank, Delaware (the
2
"Escrow Agent") and PFPC Inc. (the "Escrow Administrator"), and the
funds will be invested in the Company at each closing as described
in the Prospectus. Checks should be made payable to the Escrow
Agent, and must be transmitted by Selling Agents directly to the
Escrow Administrator by noon of the next business day after receipt.
Investors who maintain a custody account at U.S. Trust may elect to
make payment by check or wire as described in this Section 1.8.
Selling Agent will be responsible for the prompt deposit with the
Escrow Administrator of funds to be paid for the purchase of Units
pursuant to instruments and procedures to be provided by the
Company. Selling Agent will retain all completed and executed
subscription documents, and will immediately notify PFPC Trust
Company, as transfer agent, distribution paying agent and custodian
of the Company, of the name and address of each new subscriber and
the amount of funds that each new subscriber has deposited in
escrow.
1.9 The Selling Agent shall be an independent contractor and neither the
Selling Agent nor any of its directors, officers or employees as
such, is or shall be, solely by reason of this Agreement, an
employee of Schwab or the Company.
1.10 Concurrent with the effectiveness of the Registration Statement, the
Company shall provide to the Selling Agent in writing a list of
those states and other jurisdictions in which the Units are
qualified for sale, together with restrictions and requirements
applicable thereto, and Selling Agent will sell Units only in such
states or jurisdictions and in compliance with such restrictions and
requirements.
2. Representations and Warranties of Selling Agent. Selling agent represents
and warrants to Schwab and the Company that:
2.1 Selling Agent is duly and validly organized and operating in good
standing under the laws of its state of organization, is qualified
to do business in all states where offers or sales will take place,
and is registered as a broker-dealer under applicable federal and
state securities laws and is a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD")
Selling Agent agree to abide by the rules and regulations of the
NASD, including, without limitation, the NASD Conduct Rules
(including, to the extent applicable, NASD Conduct Rules 2420, 2730,
2740 and 2750). Selling Agent agrees to provide immediate written
notice to the Company and Schwab if it ceases to be registered
and/or licensed as a broker and/or dealer under applicable federal
and state laws or fails to be a member in good standing of the NASD.
3
2.2 Selling Agent has the requisite authority to enter into, execute,
deliver and perform its obligations under this Agreement and that
with respect to it, this Agreement is legal, valid and binding, and
enforceable in accordance with its terms.
2.3 Selling Agent is either exempt from licensing or possesses all
material government licenses, permits, certificates, consents,
orders, approvals, memberships in self-regulatory organizations and
other authorizations necessary with respect to its qualification to
perform its duties under this Agreement.
2.4 All activities by the Selling Agent, its agents and employees as
selling agent shall comply materially with all applicable federal
and state securities and banking laws, rules and regulations,
including, without limitation, the 1933 Act, the USA Patriot Act,
the Exchange Act, the 1940 Act, the rules and regulations
thereunder, and all applicable restrictions and requirements of
each state or other jurisdiction in which the Units are qualified
for sale.
2.5 The Selling Agent (i) is a financial institution required to have an
anti-money laundering program under the Bank Secrecy Act, as
amended; (ii) is acting on behalf of its customers in its
dealings with the Company; (iii) has established and will
maintain policies and procedures reasonably designed to comply
with the regulations administered by the U.S. Department of
Treasury's Office of Foreign Assets Control; and (iv) has
established and will maintain policies and procedures reasonably
designed to prevent and detect money laundering, which policies
and procedures adhere to the requirements of all applicable laws,
including the Bank Secrecy Act, as amended. In the event any of
the foregoing representations ceases to be true, the Selling
Agent agrees to promptly notify the Company and Schwab.
2.6 Selling Agent shall not make any representation concerning the
Company or its securities except those contained in the Company's
Registration Statement and Prospectus in effect during the term of
this Agreement or any Sales Materials. "Sales Material," as used
herein, shall include, without limitation, promotional materials,
sales literature, advertisements, press releases, announcements,
circulars, research reports, market letters, performance reports or
summaries, form letters, posters, signs and other similar materials,
whether in print, hypertext, video, audio or other media, and any
items derived from the foregoing, and including sales materials
intended for wholesale use (i.e., broker/dealer use only) or retail
use. The Selling Agent agrees to deliver copies of the Prospectus
and Sales
4
Materials to investors in accordance with applicable laws and the
rules of the SEC and federal and state bank regulatory authorities.
2.7 During the term of this Agreement, Selling Agent agrees to
notify immediately the Company and Schwab, in writing, if it becomes
aware of any inaccurate or misleading statements in the Prospectus;
provided that the Selling Agent shall have no duty of investigation
in connection therewith.
2.8 Selling Agent agrees that it will offer Units strictly in conformity
with the provisions of this Agreement and the Prospectus subject to
Section 1.10 of this Agreement. No Units shall be offered by the
Selling Agent under any of the provisions of this Agreement and no
subscription for the purchase or sale of Units hereunder shall be
accepted by the Company if and so long as the effectiveness of the
Registration Statement shall be suspended under any of the
provisions of the 1933 Act, or if and so long as a current
prospectus as required by Section 10(b) of the 1933 Act is not on
file with the SEC.
2.9 With the exception of (i) listings of product offerings and
(ii) materials used by the Selling Agent on an internal basis
only, Selling Agent agrees not to furnish or cause to be
furnished to any third parties or to display publicly or publish
any Sales Materials, except such Sales Materials relating to the
Company as may be distributed to the Selling Agent by the Company
and approved by Schwab. Selling Agent agrees not to furnish or
cause to be furnished to any third parties or to display publicly
or publish any Sales Material referring to Schwab or any of its
trademarks, except, with respect to such references only, such
Sales Materials as may be approved by Schwab upon the Selling
Agent's request.
2.10 Selling Agent agrees to request from the Company and the Company
agrees to provide to the Selling Agent in a timely manner such
number of copies of the Prospectus, applicable subscription
agreements, and Sales Material as may be reasonably requested by the
Selling Agent. In the event the Selling Agent elects to use such
Sales Material, it is agreed that such Sales Material shall not be
used in connection with this sale of Units unless accompanied or
preceded by the Prospectus.
2.11 All representations, warranties and covenants by Selling Agent
contained herein shall be true and correct at all times during the
term of this Agreement, and shall survive termination of this
Agreement.
5
3. Representations and Warranties of Schwab. Schwab represents and warrants
to Selling Agent that:
3.1 Schwab is duly organized and is validly existing as a corporation in
good standing under the laws of the State of California and is
qualified to do business in all states. Schwab is also registered as
a broker-dealer under applicable federal and state laws and is a
member in good standing of NASD. Schwab agrees to notify Selling
Agent immediately if it ceases to be registered and/or licensed as a
broker and/or dealer under applicable federal and state laws or
fails to be a member in good standing of the NASD, and Schwab agrees
to abide by the USA Patriot Act, the rules and regulations of the
NASD, including, without limitation, the NASD Conduct Rules
(including, to the extent applicable, NASD Conduct Rules 2420, 2730,
2740 and 2750).
3.2 Schwab has all the requisite authority to enter into, execute,
deliver and perform its obligations under this Agreement and that,
with respect to it, this Agreement is legal, valid and binding, and
enforceable in accordance with its terms.
3.3 The Registration Statement, Prospectus and any Sales Materials
relating to the Company provided by the Company to Selling Agent
does not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which
they were made, not misleading with respect to any information
relating to Schwab furnished in writing to the Company by Schwab
expressly for use therein.
3.4 All representations, warranties, and agreements by Schwab contained
herein shall be true and correct at all times during the term of
this Agreement, and shall survive termination of this Agreement.
4. Indemnification.
4.1 The Selling Agent agrees to indemnify and hold harmless Schwab (for
purposes of this Section 4.1, "Schwab" shall mean Schwab, its
directors, officers, employees and agents, and any person who is
or may be deemed to be a controlling person of Schwab) from and
against any and all losses, claims, damages, liabilities and
expenses, including the reasonable costs of investigation and
attorney's fees and expenses as such expenses are incurred by
Schwab in any action or proceeding between the parties hereto or
between Schwab and any third party, to which Schwab may become
subject under the 1933 Act, the Exchange Act, the 1940 Act or
otherwise, insofar as any such loss, claim, damage, liability or
expense (or action with respect thereto) is asserted by any
person to whom the Selling Agent
6
offered Units or who subscribes to Units through the Selling Agent
or otherwise arises from Selling Agent's activities pursuant to this
Agreement, except insofar as such loss, claim, damage, or liability
is caused by any untrue statement or omission with respect to
information relating to Schwab furnished in writing to the Company
by Schwab expressly for use in the Registration Statement,
Prospectus, or Sales Material.
4.2 The Selling Agent agrees to indemnify and hold harmless the Company
(for purposes of this Section 4.2, the "Company" shall mean the
Company, its managers, officers, employees and agents, and any
person who is or may be deemed to be a controlling person of the
Company) from and against any and all losses, claims, damages,
liabilities and expenses, including the reasonable costs of
investigation and attorney's fees and expenses as such expenses
are incurred by the Company in any action or proceeding between
the parties hereto or between the Company and any third party, to
which the Company may become subject under the 1933 Act, the
Exchange Act, the 1940 Act or otherwise, insofar as any such
loss, claim, damage, liability or expense (or action with respect
thereto) arises out of or is based on any untrue statement of a
material fact or omission with respect to information relating to
the Selling Agent furnished in writing to the Company by the
Selling Agent expressly for use in the Registration Statement,
Prospectus or Sales Material.
4.3 Schwab agrees to indemnify and hold harmless Selling Agent (for the
purposes of this Section 4.3, "Selling Agent" shall mean Selling
Agent, its directors, its officers, employees and agents of Selling
Agent, and any person who is or may be deemed to be a controlling
person of Selling Agent) from and against any and all losses,
claims, damages, liabilities or expenses (including the reasonable
costs of investigation and attorney's fees and expenses as such
expenses are incurred by Selling Agent in any action or proceeding
between the parties hereto or between Selling Agent and any third
party) to which Selling Agent may become subject under the 1933 Act,
the Exchange Act, the 1940 Act, or otherwise, insofar as any such
loss, claim, damage, liability or expense (or action with respect
thereto) arises out of or is based on any untrue statement of a
material fact contained in the Registration Statement, Prospectus or
Sales Materials, or arises out of or is based on the failure to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that Xxxxxx'x obligation to indemnify and hold harmless
Selling Agent applies only with respect to such statements or
omissions of material fact relating to information about Schwab
furnished in writing by Schwab expressly for use in the Registration
Statement, Prospectus or Sales Materials. No indemnity
7
hereunder shall apply with respect to any Prospectus or Sales
Materials used by Selling Agent at a time not authorized under the
1933 Act or the regulations adopted thereunder, provided that Schwab
or the Company has informed Selling Agent in writing that there is
no such authorization, or Selling Agent otherwise knows that there
is no such authorization.
4.4 The Company agrees to indemnify and hold harmless the Selling Agent
(for the purposes of this Section 4.4, "Selling Agent" shall mean
Selling Agent, its directors, officers, employees and agents, and
any person who is or may be deemed to be a controlling person of
Selling Agent) from and against any and all losses, claims,
damages, liabilities and expenses (including the reasonable costs
of investigating or defending such losses, claims, damages or
liabilities and any attorney's fees and expenses incurred in
connection therewith) which Selling Agent may incur (i) under the
1933 Act, the 1940 Act or otherwise, arising out of or based upon
any untrue statement, or alleged untrue statement, of a material
fact contained in (a) the Registration Statement of the Company
(including any Prospectus that is part of any such Registration
Statement) or any amendment or supplement thereto, and (b) any
Sales Materials relating to the Company provided to the Selling
Agent by the Company (whether or not the Selling Agent has
approved the use of such Sales Materials), or arising out of or
based upon any omission, or alleged omission, to state a material
fact required to be stated in any Registration Statement,
Prospectus, or Sales Materials or necessary to make the
statements therein not misleading; and (ii) as a result of any
breach by the Company of any representation, warranty or covenant
made by the Company under the Distribution Agreement; provided,
however, that the Company's agreement to indemnify Selling Agent
(i) shall not be deemed to cover any losses, claims, damages,
liabilities or expenses arising out of any untrue statements or
representations contained in any Registration Statement,
Prospectus or Sales Material as are furnished in writing to the
Company by Selling Agent expressly for use therein; and
(ii) shall not be deemed to cover any liability to the Company to
which the Selling Agent would otherwise be subject by reason of
willful misfeasance, bad faith, and gross negligence in the
performance of its duties, or any reason of the Selling Agent's
reckless disregard for its obligations and duties under this
Agreement.
4.5 If a party seeks indemnity under this Section 4 (the "indemnified
party"), the indemnified party shall, promptly, after receipt of
notice of commencement of any action, suit or proceeding against
the indemnified party, give written notice of the commencement of
such action, suit or proceeding to the other party (the
"indemnifying party"), but the omission so to notify the
indemnifying party shall not relieve the indemnifying party
8
from any obligation it may otherwise have, except to the extent that
it is actually harmed by such an omission. In case such notice of
any such action shall be so given, the indemnifying party shall be
entitled to participate at its own expense in the defense, or, if it
so elects, to assume the defense of such action, in which event such
defense shall be conducted by counsel (satisfactory to the
indemnified party) chosen by the indemnifying party; provided,
however, that the indemnifying party shall not have the right to
assume the defense of any action in which the named parties
(including any implied parties) include both parties and in which
counsel to either party has advised that there may be legal defenses
available to one party which are in conflict with those available to
the other party. If the indemnifying party elects to assume the
defense of such action and it has the right to do so, the
indemnified party shall bear the fees and expenses of any additional
counsel it retains. If the indemnifying party does not elect to
assume the defense of such action and in cases where separate
counsel is retained because of the availability of conflicting
defenses, the indemnifying party will reimburse the indemnified
party for the reasonable fees and expenses of any counsel retained
by the indemnified party. Payment (other than the reimbursement of
the indemnified party's legal and other related fees and expenses,
which will be payable to it upon receipt by the indemnifying party
of a xxxx related thereto) shall be made upon the rendering of any
final decision in such action, suit or proceeding by a court, panel
of arbitrators, administrative agency or self-regulatory
organization, or upon any settlement of any dispute, the subject of
which involves such a claim. No such action, suit or proceeding or
dispute, the subject of which involves such a claim, shall be
settled by either party without notice to and consent by the other,
which consent shall not be unreasonably withheld.
4.6 This Section 4 shall survive the termination of this Agreement.
5. Termination. This Agreement shall become effective upon its execution
and shall continue in force until the earlier of the date that Schwab
notifies Selling Agent that the offer is terminated or complete or the
date set forth in the Prospectus; provided, however, that in no case
shall this Agreement remain in force beyond December 31, 2003. Prior
to the last Closing Date, this Agreement may be terminated by Schwab or
the Selling Agent immediately upon written notice to the other party at
any time. Any expenses incurred by the Selling Agent in the
performance of its efforts under this Agreement, including but not
limited to expenses related to the sale of the Units, shall be at
Selling Agent's sole expense, and the foregoing shall apply
notwithstanding the fact that the Offering is terminated for any reason.
9
6. Arbitration. In the event of a dispute between the parties relating to or
arising out of this Agreement or the parties' relationship hereunder, the
parties agree to the extent permitted by applicable law to submit the
matter to arbitration in accordance with Sections 6.1, 6.2 and 6.3 below.
In the event of such a dispute between the parties:
6.1 Arbitration will be held in San Francisco, California, in accordance
with the rules and regulations of the NASD, except, in the event
that the NASD is unwilling to accept jurisdiction of the matter,
such arbitration will be held in San Francisco, California in
accordance with the rules and regulations of the American
Arbitration Association.
6.2 If the arbitration is brought by a party, the number of arbitrators
will be three (3), and they will be selected in accordance with
the rules and regulations of the NASD or American Arbitration
Association, as appropriate. The arbitrators shall be attorneys
who are from the securities industry as defined by the applicable
arbitration rules. Any award of the arbitrators will be limited
to compensatory damages and will be conclusive and binding upon
the parties. The arbitration shall be governed by the Federal
Arbitration Act, 9 U.S.C. Sections 1-16 to the exclusion of state
laws inconsistent therewith, and judgment upon the award may be
entered in any court having jurisdiction.
6.3 The prevailing party shall be entitled to an award of all costs in
connection with the arbitration, including reasonable attorney's
fees, from the panel. Any costs, fees or taxes involved in enforcing
the award shall be fully assessed against and paid by the party
resisting enforcement of the award.
6.4 Nothing in this Section 6 will prevent a party from resorting to
judicial proceedings or otherwise for injunctive relief to prevent
serious irreparable harm or injury to the parties or others, as
applicable.
6.5 In the event that a non-party to this Agreement initiates legal
proceedings (including, but not limited to, an arbitration claim or
a claim in state or federal court) against the parties relating to
or arising out of this Agreement, the parties agree to litigate or
arbitrate in the forum in which such legal proceeding is brought.
7. Miscellaneous.
7.1 This Agreement may be amended upon the mutual written agreement of
the parties hereto. This Agreement shall be in substitution of any
prior agreement between the parties hereto regarding the
distribution of Company shares.
10
7.2 The Selling Agent acknowledges that the Company reserves the right
in its discretion and without prior notice to Selling Agent, subject
to applicable law, to withdraw the offering of shares of the
Company.
7.3 All communications shall be sent to the Company at its offices at
Excelsior Buyout Investors, LLC, 000 Xxxx Xxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, to Schwab at its offices at Xxxxxxx Xxxxxx &
Co., Inc., Attention: Xxxxx X. Xxxxxx 000 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 and to Selling Agent at its offices
at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000.
Notice shall be deemed to have been given on the date it was
either delivered personally to a party or any officer or member
thereof or was either received by express delivery or telecopy
(with receipt) by a party at his or her address specified in this
Agreement. A party may change the address to which
communications to it shall be sent by giving notice thereof in
accordance with this provision.
7.4 If any provision of this Agreement is found by a court or agency of
competent jurisdiction to be in violation of any state or federal
law, rule or regulation, then the invalidity of such provision shall
not affect the enforceability or validity of the remaining
provisions.
7.5 This Agreement shall be governed by and construed in accordance with
the laws of the State of California applicable to the contracts made
and to be performed entirely within such state.
7.6 This Agreement may be executed in one or more counterparts, each of
which shall constitute an original and all of which together shall
constitute one agreement.
7.7 The headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part of
this Agreement.
Please confirm that the foregoing is in accordance with your understanding
by indicating your acceptance hereof at the place below indicated, whereupon it
shall become a binding agreement.
Very truly yours,
XXXXXXX XXXXXX & CO., INC
By:-------------------------------
Name:-----------------------------
11
Title:----------------------------
Date:-----------------------------
Accepted:
--------
UST SECURITIES CORP.
By: ------------------------
Name: ------------------------
Title: ------------------------
Address: ------------------------
Date: ------------------------
12
EXCELSIOR BUYOUT INVESTORS, LLC
By: ------------------------
Name: ------------------------
Title: ------------------------
Address: ------------------------
Date: ------------------------
13
