FORM OF SELLING GROUP AGREEMENT
FORM
OF SELLING GROUP AGREEMENT
SALIENT
CAPITAL, L.P.
0000 Xxx
Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
January
[__], 2010
Dear
Financial Services Firm:
As
principal distributor, we invite you to join a Selling Group for the
distribution of shares of the funds identified on Schedule A hereto (each herein
called a “Fund”), as Schedule A may be amended from time to time, but only in
those states or jurisdictions in which the shares of the Fund may legally be
offered for sale. As agent of the Fund, we offer to sell to you
shares of the Fund on the following terms:
1. In
all sales of these shares to the public you shall act as dealer for your own
account, and in no transaction shall you have any authority to act as agent for
the issuer, for us or for any other member of the Selling Group.
2. Orders
received from you will be accepted by us only at the public offering price
applicable to each order, as established by the Fund’s then currently effective
prospectus (“Prospectus”), subject to a discount, commission or other
concession, if any, as provided in the Prospectus. Upon receipt from
you of any order to purchase shares of the Fund, we shall confirm to you in
writing or by wire to be followed by a confirmation in
writing. Additional instructions may be forwarded to you from time to
time. All orders are subject to acceptance or rejection by us in our
sole discretion.
3. You
may offer and sell shares to your customers only at the public offering price
determined in the manner described in the Prospectus. The public
offering price is the net asset value per share as provided in the applicable
Prospectus.
4. By
accepting this agreement, you agree:
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(a)
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To
purchase shares only from us or from your customers.
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(b)
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That
you will purchase shares from us only to cover purchase orders already
received from your customers, or for your own bona fide
investments.
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(c)
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That
you will not purchase shares from your customers at a price lower than the
applicable repurchase price, as applicable, established by or for
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the
Fund. You may, however, sell shares for the account of your
customer to the Fund, or to us as agent for the Fund, at the applicable
repurchase price currently quoted by or for the Fund and charge your
customer a fair fee for handling the transaction.
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(d)
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That
you will not withhold placing with us orders received from your customers
so as to profit yourself as a result of such
withholding.
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5.
We will not accept from you any conditional orders for shares.
6. If
any shares confirmed to you under the terms of this agreement are repurchased by
the Fund or by us as agent for the Fund, or are tendered for repurchase, within
seven business days after the date of confirmation of the original purchase
order, you shall forthwith refund to us the full discount, commission, finder’s
fee or other concession, if any, allowed or paid to you on such
shares.
7. Payment
for shares ordered from us shall be in New York clearinghouse funds and must be
received by the Fund’s designated agent within five days after our acceptance of
your order (or such shorter time period as may be required by applicable
regulations). If such payment is not received, we reserve the right,
without notice, forthwith to cancel the sale or, at our option, to sell the
shares ordered back to the Fund, in which case we may hold you responsible for
any loss, including loss of profit suffered by us as a result of your failure to
make such payment.
8. Shares
sold to you hereunder shall be available in negotiable form for delivery against
payment, unless other instructions have been given.
9. All
sales will be made subject to our receipt of shares from the Fund. We
reserve the right, in our discretion, without notice, to suspend sales or
withdraw the offering of shares entirely. Upon our direction, we
reserve the right to modify, cancel or change the terms of this agreement, upon
15 days’ prior written notice to you. Also, the sales charges,
discounts, commissions or other concessions, and fees of any kind provided for
hereunder are subject to change at any time by the Fund and upon our
direction.
10. All
communications to us should be sent to the following address:
Salient
Capital, L.P.
0000 Xxx
Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attn: Chief
Compliance Officer
Facsimile: 000-000-0000
Any
notice to you shall be duly given if mailed or telecopied to you at the address
specified by you below.
11. This
agreement will be governed by the laws of the State of New York without
reference to the choice of law principles thereof. The courts of the
State of New York are to have non-exclusive jurisdiction to settle any disputes,
which may arise out of or in connection
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with this
agreement and accordingly any legal action or proceedings arising out of or in
connection with this agreement (“Proceedings”) may be brought in such
courts. You hereby irrevocably submit to the jurisdiction of the
courts of the State of New York and hereby waive any objection to Proceedings in
such courts, whether on the grounds that the Proceedings have been brought in an
inconvenient forum or otherwise. This agreement is subject to the
Prospectus from time to time in effect, and, in the event of a conflict, the
terms of the Prospectus shall control.
12. References
herein to the “Prospectus” shall mean the prospectus and statement of additional
information of the Fund as from time to time in effect. Any changes,
modifications or additions reflected in any such Prospectus shall be effective
on the date of such Prospectus (or supplement thereto) unless specified
otherwise.
13. No
person is authorized to make any representations concerning shares of the Fund
except those contained in the Prospectus and in printed information subsequently
issued by the Fund or by us as information supplemental to the
Prospectus. If you wish to use your own advertising with respect to
the Fund, all such advertising must be approved by us or by the Fund prior to
use. You shall be responsible for any required filing of such
advertising.
14. Your
acceptance of this agreement constitutes a representation (i) that you are a
registered securities dealer and a member in good standing of the Financial
Industry Regulatory Authority, Inc. (“FINRA”) and that you agree to comply with
all state and federal laws, rules and regulations applicable to transactions
hereunder and to the Rules of Fair Practice of FINRA, or (ii) if you are
offering and selling shares of the Fund only in jurisdictions outside of the
several states, territories and possessions of the United States and are not
otherwise required to be a member of FINRA, that you nevertheless agree to
conduct your business in accordance with the spirit of the Conduct Rules of
FINRA, and to observe the laws and regulations of the applicable
jurisdiction. You likewise agree that you will not offer to sell
shares of the Fund in any state or other jurisdiction in which it may not
lawfully be offered for sale. You agree that you shall deliver a
Prospectus to each of your customers who purchases shares of the Fund prior to
or accompanied by confirmation of each such purchase, copies of which shall be
supplied to you in reasonable quantity upon your request.
15. You
shall make available an account for each of your customers through the Fund and
shall provide such office space and equipment, telephone facilities, personnel
and literature distribution as is necessary or appropriate for providing
information and services to your customer. Such services and
assistance may include, but not be limited to, the provision of personal,
continuing services to your customers who are investors in the Fund
(“shareholders”), establishment and maintenance of shareholder accounts and
records, receiving, aggregating and processing purchase and repurchase
transactions, maintaining retirement plan accounts and providing and maintaining
retirement plan records, communicating periodically with shareholders and
providing information and responding to questions about the Fund, the shares,
the availability of shares in any continuous offering, and repurchase offers,
and handling correspondence from shareholders about their accounts, acting as
the sole shareholder of record and nominee for shareholders, obtaining and
maintaining certifications with respect to investor qualifications and share
transfer restrictions, assisting the Fund or any agent of the Fund
in
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monitoring
or enforcing the investor qualification requirements and share transfer
restrictions, providing beneficial owners with account statements, processing
distribution payments, issuing shareholders reports and transaction
confirmations, providing sub accounting services for shares held beneficially,
forwarding shareholder communications to beneficial owners, receiving,
tabulating and transmitting proxies executed by beneficial owners, general
account administration activities, and such other services as may be agreed upon
from time to time and as may be permitted by applicable statute, rule, or
regulation. You agree to release, indemnify and hold harmless the
Fund, us and our representatives and agents, from any and all direct or indirect
liabilities or losses resulting from requests, directions, actions or inactions
of or by you, your officers, employees or agents regarding the purchase,
repurchase or transfer of registration of shares of the Fund for accounts of
you, your customers and other shareholders or from any unauthorized or improper
use of any on-line computer facilities. You shall prepare such
periodic reports as shall reasonably be requested by us. You shall
immediately inform the Fund or us of all written complaints received by you from
Fund shareholders relating to the maintenance of their accounts and shall
promptly answer all such complaints and other similar
correspondence. You shall provide the Fund and us on a timely basis
with such information as may be required to complete various regulatory
forms.
16. You
acknowledge and agree that each of your customers on whose behalf you purchase
shares of the Fund will be an (i) investor who is an “Eligible Investor” as that
term is defined in the relevant Registration Statement, and (ii) obtain and
comply with any investor certification requirements set forth in the Fund’s
Registration Statement and maintain on file a validly executed investor
certification with respect to each such customer’s status as an “Eligible
Investor.” You shall assist us or the Fund as is necessary in the monitoring and
enforcement of the Fund’s share ownership qualification requirements and share
transfer restrictions, including providing copies of shareholder certifications
or other documentation as may be necessary to determine the status of
shareholders.
17. As
a result of the necessity to compute the amount of any early repurchase charge
due with respect to the repurchase of shares, if applicable, you may not hold
shares of the Fund imposing such a charge in an account registered in your name
or in the name of your nominee for the benefit of certain of your customers
except with our prior written consent. Except as otherwise permitted
by us, shares of the Fund owned by a shareholder must be in a separately
identifiable account for such shareholder.
18. Each
Fund may be divided into one or more classes of shares, certain of which may
only be available to investment advisory clients of ours. Future
classes of shares may be offered at net asset value and may or may not have an
initial sales charge, an early withdrawal charge, an asset-based services fee,
and/or a conversion feature. This agreement shall apply to any future
classes of shares permitted to be sold by you.
19. You
acknowledge and agree that it is important to investors not only to choose a
Fund appropriate for their investment objectives, but also to choose the
appropriate Fund. To assist investors in these decisions, we may
institute policies with respect to orders for shares of the Fund that would
apply to each broker/dealer that distributes shares of the Fund, and would
became a part of this agreement upon inclusion in the Prospectus.
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20. Appropriate
supervisory personnel within your organization must ensure that all employees
receiving investor inquiries about the purchase of shares of the Fund make any
required suitability determination with respect to the prospective investment
and advise the investor of the available pricing structures offered by the Fund
if applicable and the impact of choosing one method over another, including
breakpoints and the availability, if any, of letters of intent, combined
purchases and cumulative discounts. In some instances it may be
appropriate for a supervisory person to discuss a purchase with the
investor.
21. Shares
of the Fund may be subject to significant transfer restrictions, as set forth in
the Prospectus. These may include, but are not limited to,
restrictions prohibiting the transfer of shares to individuals who are not
“Eligible Investors” as defined in the Prospectus, and prohibiting the transfer
of shares to individuals who would not hold the shares through an intermediary
that has entered into a selling group agreement with us or our
delegate. You acknowledge and agree that you will effect transfer of
shares of a Fund only in compliance with such transfer
restrictions.
22. This
agreement shall be in substitution of any prior selling group agreement between
you and us regarding these shares. The payment of any distribution,
services and/or administrative services fees, if any, shall be subject to the
distribution, administrative services and/or services plans or agreements
adopted by the Fund with respect to the shares.
23. Schedule
A hereto may be amended from time to time, effective upon mailing of such
amended Schedule to you. Your acceptance of the amended Schedule is
deemed with respect to a particular Fund upon placement by you of an order for
shares of that Fund.
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SALIENT
CAPITAL, L.P.
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By:
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Salient
Capital Management, LLC
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Its
General Partner
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By:
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Name:
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Title:
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0766727.01
003555-000033
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PLEASE
COMPLETE THE INFORMATION BELOW:
ACCEPTED
AND CONFIRMED BY THE UNDERSIGNED FINANCIAL SERVICES FIRM
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Printed
Firm Name
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Address
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Authorized
Signature
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Area
Code and Telephone Number
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Name
and Title
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Area
Code and Facsimile Number
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Dated:
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SCHEDULE
A
Schedule
A designating the investment companies with respect to which this Agreement
relates. Shares of each Fund may only be purchased by “Eligible Investors” as
set forth in paragraph 16 of this agreement and are subject to transfer
restrictions.
Salient
Absolute Return Fund
