EXHIBIT 25.2(H)(1)
EXECUTION COPY
PRIVATE PLACEMENT AGENCY AGREEMENT
among
YORK ENHANCED STRATEGIES FUND, LLC,
YORK ENHANCED STRATEGIES FEEDER FUND,
YORK ENHANCED STRATEGIES FEEDER FUND (CAYMAN) LTD.,
YORK ENHANCED STRATEGIES MANAGEMENT, LLC,
XXXXXX XXXXXXX & CO. INCORPORATED
and
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
November 17, 2005
PRIVATE PLACEMENT AGENCY AGREEMENT
November 17, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Ladies and Gentlemen:
YORK ENHANCED STRATEGIES FUND, LLC (the "ISSUER") is a Delaware limited
liability company, which will be registered as a nondiversified, closed-end
management investment company under the U.S. Investment Company Act of 1940, as
amended, and the rules and regulations thereunder (collectively, the "INVESTMENT
COMPANY ACT"). York Enhanced Strategies Management, LLC is a registered
investment adviser under the U.S. Investment Advisers Act of 1940, as amended,
(along with the rules and regulations thereunder, the "ADVISERS ACT") and along
with certain of its affiliates will serve as the investment manager of the
Issuer (the "INVESTMENT MANAGER"). Capitalized terms used but not otherwise
defined herein have the respective meanings set forth in the Private Placement
Documents (as defined herein).
The Issuer is authorized to issue common shares (the "COMMON SHARES"),
preferred shares (the "PREFERRED SHARES", together with the Common Shares, the
"SHARES") and revolving notes (the "NOTES") under the Indenture to be entered
into by and between the Issuer and JPMorgan Chase Bank, N.A., as trustee (the
Shares, together with the Notes, the "SECURITIES"). It is currently anticipated
that an aggregate of $109.0 million of Preferred Shares will be issued in the
form of floating rate term cumulative preferred securities with a liquidation
preference and other terms authorized by the board of directors of the Issuer at
the time of issuance in conformity with the Investment Company Act and pursuant
to the related Preferred Share Purchase Agreement, to be entered into with
respect to the Term Preferred Shares. In addition, it is currently anticipated
that the Issuer will issue an aggregate of $216.0 million of the Notes under the
Indenture and pursuant to the related Note Purchase Agreement, to be entered
into by
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and among the Issuer, Deutsche Bank Trust Company Americas, as Note agent, and
the holders of the Notes (the "NOTE PURCHASE AGREEMENT").
The Issuer proposes to offer Common Shares for sale solely to persons
that are "accredited investors" ("ACCREDITED INVESTORS") as defined by Rule
501(a) of Regulation D of the U.S. Securities Act of 1933, as amended (the
"SECURITIES ACT"), "qualified clients" ("QUALIFIED CLIENTS") within the meaning
of Rule 205-3 under the Advisers Act and "qualified purchasers" ("QUALIFIED
PURCHASERS") within the meaning of Section 2(a)(51)(A) under the Investment
Company Act and the regulations promulgated thereunder (collectively, the
Accredited Investors, the Qualified Clients and the Qualified Purchasers are,
the "QUALIFIED INVESTORS"). The Issuer proposes to offer Preferred Shares and
Notes for sale solely to certain Qualified Investors, who are also "qualified
institutional buyers" as defined in Rule 144A of the Securities Act. The Issuer
desires to retain Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX XXXXXXX") to act as
its placement agent in connection with the offer and sale of the Common Shares
by the Issuer in the United States. The Issuer desires to retain Xxxxxx Xxxxxxx
& Co. International Limited acting through its Fixed Income Division ("FID") to
act as its placement agent in connection with the offer and sale of the Common
Shares by the Issuer, shares (the "DELAWARE FEEDER SHARES") of York Enhanced
Strategies Feeder Fund, a Delaware statutory trust (the "DELAWARE FEEDER FUND")
and shares (the "CAYMAN FEEDER SHARES" together with the Delaware Feeder Shares,
the "FEEDER SHARES") of York Enhanced Strategies Feeder Fund (Cayman) Ltd., a
Cayman Islands company (the "Cayman Feeder Fund," together with the Delaware
Feeder Fund, the "FEEDER FUNDS") outside the United States. In addition, the
Issuer desires to grant to Xxxxxx Xxxxxxx & Co. International Limited acting
through its Private Wealth Management division ("PWM") the right to distribute
the Common Shares of the Issuer and shares of the Feeder Funds outside the
United States and PWM agrees to act as distributor subject to Appendix A
attached hereto. For the avoidance of doubt, FID and PWM shall hereinafter be
jointly referred to as "MSIL" and MSIL and Xxxxxx Xxxxxxx shall hereinafter be
jointly referred to as the "PLACEMENT AGENT."
The Shares will be issued pursuant to an operating agreement, dated as
of November 3, 2005 (as amended through the date hereof, the "OA") among the
initial Directors; York Enhanced Strategies Management, LLC, as Initial Member
(as defined in the OA); and those persons identified as Members (as defined in
the OA) in the books of the Issuer as of the date of the OA and the Statement of
Preferences of Series A-1 Floating Rate Term Preferred Shares (the "STATEMENT"),
dated November 17, 2005, which is attached to the OA as Appendix A and made a
part thereof (the OA together with the Statement, the "OPERATING AGREEMENT").
The Operating Agreement and the Certificate of Formation of the Issuer are
referred to herein as the "ORGANIZATIONAL DOCUMENTS." The Notes will be issued
pursuant to the indenture, dated as of November 17, 2005 (the "INDENTURE"), by
and between the Issuer and JPMorgan Chase Bank, National Association, as trustee
(the "TRUSTEE").
Each of the Feeder Funds are authorized to issue that number of Feeder
Shares sufficient to satisfy the requirements of subscription agreements
relating to the Feeder Shares, which were entered into on or before the Closing
Date. The Feeder Funds have applied for listing of the Feeder Shares on the
Irish Stock Exchange. The Certificate of Trust and Agreement and Declaration of
Trust of the Delaware Feeder are referred to herein as the "DELAWARE FEEDER
ORGANIZATIONAL DOCUMENTS." The Memorandum of Association and Articles of
Association of
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the Cayman Feeder are referred to herein as the "CAYMAN FEEDER ORGANIZATIONAL
DOCUMENTS." The primary assets of each of the Feeder Funds will
be Common Shares of the Issuer. Feeder Shares will be offered and sold to
Qualified Investors. In connection with the offer and sale of the Delaware
Feeder Shares, the Delaware Feeder Fund prepared and delivered to the Placement
Agent, for delivery to prospective investors in the Delaware Feeder Shares a
Prospectus, dated November 2, 2005 (the "DELAWARE FEEDER PROSPECTUS"). In
connection with the offer and sale of the Cayman Feeder Shares, the Cayman
Feeder Fund prepared and delivered to the Placement Agent, for delivery to
prospective investors in the Cayman Feeder Shares a Prospectus, dated November
2, 2005 (the "CAYMAN FEEDER PROSPECTUS," together with the Delaware Feeder
Prospectus, the "FEEDER PROSPECTUSES.")
The Securities and the Feeder Shares will be offered and sold without
being registered under the Securities Act in compliance with the exemption from
registration provided by Section 4(2) and Regulation D thereof. In connection
with the offer and sale of the Common Shares, the Issuer prepared and delivered
to the Placement Agent, for delivery to prospective investors in the Common
Shares, the preliminary private placement memoranda dated April 21, 2005 (the
"PRELIMINARY COMMON SHARE PPM") and a final private placement memorandum dated
November 2, 2005, as supplemented by the Private Placement Supplement, dated
November 15, 2005 (the "FINAL COMMON SHARE PPM"). Such Preliminary Common Share
PPM and Final Common Share PPM, including (i) all amendments or supplements
thereto, or revisions thereof; and (ii) any accompanying exhibits are
collectively referred to herein as the "COMMON SHARE PPM." In connection with
the offer and sale of the Preferred Shares and the Notes, the Issuer prepared
and delivered to the placement agent for the Preferred Shares and the Notes (the
"PREFERRED SHARE AND NOTE PLACEMENT AGENT"), for delivery to prospective
investors in the Preferred Shares and the Notes, a preliminary private placement
memorandum dated October 6, 2005 (the "PRELIMINARY PREFERRED SHARE AND NOTE
PPM"), and a final private placement memorandum dated November 16, 2005, as
supplemented by the Private Placement Memorandum Supplement, dated November 17,
2005 (the "FINAL PREFERRED SHARE AND NOTE PPM"). Such Preferred Share and Note
PPM and Final Preferred Share and Note PPM, including (i) all amendments or
supplements thereto, or revisions thereof; and (ii) any accompanying exhibits
are collectively referred to herein as the "PREFERRED SHARE AND NOTE PPM"
(together with the Common Share PPM, the "PRIVATE PLACEMENT DOCUMENTS"). The
Private Placement Documents describe, among other things, the terms of the
Common Shares, the Preferred Shares, the Issuer, the Investment Manager, the
Operating Agreement, the terms of the shares of the Feeder Funds, the Indenture
and certain risk factors.
The Issuer will file with the U.S. Securities and Exchange Commission
(the "SEC"), in accordance with the provisions of the Investment Company Act, a
registration statement on Form N-2 (the "REGISTRATION STATEMENT") and a
Notification of Registration on Form N-8A (the "NOTIFICATION") pursuant to
Section 8 of the Investment Company Act.
1. Representations and Warranties.
A. Representations and Warranties of the Issuer. The Issuer represents
and warrants to, and agrees with the Placement Agent that, as of the date hereof
and as of the Closing Date (as defined in Section 4 hereof):
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(i) Each of the Common Share PPM and the Preferred Share and
Note PPM (which, for purposes of this sentence shall be
deemed to include additional materials provided to
prospective investors by or on behalf of the Issuer
where such materials: (a) have been reviewed and
approved by the Investment Manager or (b) were provided
by the Investment Manager to the Issuer, the Placement
Agent or to prospective investors) as of the date
thereof does not, and as of the Closing Date will not,
contain any untrue statement of a material fact or omit
any material fact necessary to make the statements
therein, in the light of the circumstances under which
they were made, not misleading, except that the
representations and warranties set forth in this Section
1(A)(i) do not apply to statements or omissions in the
Final Common Share PPM or the Final Preferred Share and
Note PPM based upon information furnished in writing by
the Placement Agent regarding the Placement Agent
expressly for use therein. Such information provided by
the Placement Agent for the Final Common Share PPM and
the Final Preferred Share and Note PPM shall be referred
to herein as the "PLACEMENT AGENT'S INFORMATION."
(ii) The Issuer has been duly organized, is validly existing
as a limited liability company in good standing under
the laws of the State of Delaware and has the power and
authority to own its assets, to conduct its business as
described in the Final Common Share PPM and to execute,
deliver and perform its obligations under this
Agreement, the Custodial Agreement, the Investment
Management Agreement, the Pledge and Intercreditor
Agreement, the Indenture, the Fee Letter (as defined
below) and any subscription or purchase agreements
relating to the Common Shares between the Issuer and the
purchasers named therein (collectively, the "RELATED
AGREEMENTS"), except to the extent that the failure to
be in good standing would not have a material adverse
effect on the Issuer.
(iii) Each of this Agreement, the Operating Agreement and
the Related Agreements does not violate in any
material respect any of the applicable provisions of
the Investment Company Act or the Advisers Act.
(iv) On the Closing Date, the anticipated capital structure
of the Issuer is substantially as set forth in the Final
Common Share PPM and the Common Shares conform in all
material respects to the description of them in the
Final Common Share PPM and, when issued and paid for
pursuant to the terms of the subscription agreement, the
Common Shares will be fully paid and non-assessable, and
the issuance of such Common Shares will not be subject
to any preemptive or similar right. On the Closing
Date, the Common Shares will have been duly authorized
by the Issuer and each of the Related Agreements will
have been duly authorized by the Issuer and, when
executed and delivered by the Issuer and the other
parties thereto, will constitute a valid and legally
binding agreement of the Issuer enforceable against the
Issuer in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium
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and similar laws of general applicability relating to or
affecting creditors' rights and to general equity
principles, and except as rights to indemnity thereunder
may be limited by federal or state securities laws.
(v) The execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under,
each of the Related Agreements does not and will not
contravene any provision of applicable law or the
Organizational Documents or any agreement or other
instrument binding upon the Issuer that is material to
the Issuer, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction
over the Issuer, and no consent, approval, authorization
or order of, or qualification with, any governmental
body or agency is required for the performance by the
Issuer of its obligations relating to the Common Shares
or under any of the Related Agreements, except such as
may be required under foreign or state securities or
Blue Sky laws in any jurisdiction in connection with the
sale of the Common Shares, the Exemptive Order (as
defined below) and such other approvals as have been
obtained and are in full force and effect.
(vi) The Issuer owns, possesses or has obtained all
necessary consents, licenses, authorizations,
approvals, orders, certificates and permits of and
from, and has made all declarations and filings with,
all federal, state, local and other governmental
authorities, all self-regulatory organizations and
all courts and other tribunals, whether foreign or
domestic, required for the execution, delivery or
performance by the Issuer of this Agreement and to
own and use its assets and to conduct its business in
the manner described in the Final Common Share PPM,
except for the Exemptive Order.
(vii) There are no legal or governmental proceedings
pending or, to the Issuer's knowledge after due
inquiry, threatened to which the Issuer is a party or
to which any of the assets of the Issuer is subject.
(viii) Assuming that the representations, warranties and
covenants made by the Placement Agent in this Agreement
are true and correct and have been and will be
complied with, that the representations, warranties and
covenants made or deemed to be made by holders of the
Common Shares in the subscription agreements relating to
such Common Shares are true and correct and have been
and will be complied with and that the Common Shares are
offered and sold by the Placement Agent in accordance
with the Final Common Share PPM, no registration of the
Common Shares under the Securities Act is required for
the offer, sale and delivery of the Shares.
(ix) The Issuer has not taken, directly or indirectly, any
action prohibited by Rule 102 of Regulation M under
the U.S. Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT").
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(x) Neither the Issuer nor any of its affiliates as defined
in Rule 501(b) of Regulation D under the Securities Act
(each, an "AFFILIATE") has directly, or through any
agent, (a) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any security
(as defined in the Securities Act) which is or will be
integrated with the sale of the Securities in a manner
that would require the registration under the Securities
Act of the Securities or (b) engaged in any form of
general solicitation or general advertising in
connection with the offering of Securities (as those
terms are used in Regulation D under the Securities Act)
or sold, offered for sale or solicited offers to buy
Securities in any manner involving a public offering
within the meaning of Section 4(2) of the Securities
Act.
(xi) The Final Common Share PPM complies in all material
respects with the applicable requirements of
Regulation D under the Securities Act.
(xii) Based on the procedures set forth in the Organizational
Documents, the Issuer has a reasonable belief that
initial sales and subsequent transfers of the Common
Shares will be limited to persons who are Qualified
Investors.
(xiii) The Issuer intends to elect and to qualify for the
special tax treatment afforded to registered
investment companies under Subchapter M of the
Internal Revenue Code of 1986, as amended (the
"CODE").
(xiv) On the Closing Date, the Issuer will have complied
and will continue to comply in all material respects
with all applicable statutes, rules, regulations and
orders, enforced or promulgated by the SEC.
(xv) There is no action, suit or proceeding before or by
any court, commission, regulatory body,
administrative agency or other governmental agency or
body, foreign or domestic, now pending, or to the
knowledge of the Issuer, threatened against or
affecting the Issuer, which might result in any
material adverse change in the condition, financial
or otherwise, business affairs or business prospects
of the Issuer or might materially adversely affect
the properties or assets of the Issuer.
(xvi) When filed and at any time thereafter, the
Notification and the Registration Statement will not
contain any untrue statement of a material fact or
omit any material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading.
(xvii) Except for that certain exemptive relief requested from
the SEC by application, by the Issuer, the Investment
Manager and JGD Management Corp. ("JGD") under Section
17(d) of the Investment Company Act (the "EXEMPTIVE
ORDER"), no other consent, approval, exemptive order,
authorization or order of any court, governmental agency
or body or
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securities exchange or association, whether foreign or
domestic, is required for the consummation of the
transactions contemplated in, or the performance by
the Issuer of its obligations under, this Agreement, the
Operating Agreement or the Related Agreements, except
such as (a) have been obtained under the Securities Act,
the Investment Company Act, or the Advisers Act, and (b)
may be required under foreign or state securities or
Blue Sky laws, in connection with the placement of
Common Shares by the Placement Agent pursuant to this
Agreement.
(xviii) The Issuer represents that it has policies,
procedures and internal controls in place that are
reasonably designed to comply with all anti-money
laundering laws and regulations applicable to it,
including applicable provisions of the USA PATRIOT
Act of 2001 and the regulations administered by the
U.S. Department of the Treasury's Office of Foreign
Assets Control.
B. Representations and Warranties of the Delaware Feeder
Fund. The Delaware Feeder Fund represents and warrants to, and agrees with the
Placement Agent that, as of the date hereof and as of the Closing Date (as
defined in Section 4 hereof):
(i) The Delaware Feeder Prospectus (which, for purposes of
this sentence shall be deemed to include additional
materials provided to prospective investors by or on
behalf of the Delaware Feeder Fund where such materials:
(a) have been reviewed and approved by the Investment
Manager or (b) were provided by the Investment Manager
to the Delaware Feeder Fund, the Placement Agent or to
prospective investors) as of the date thereof does not,
and as of the Closing Date will not, contain any untrue
statement of a material fact or omit any material fact
necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading, except that the representations and
warranties set forth in this Section 1(B)(i) do not
apply to statements or omissions in the Delaware Feeder
Prospectus based upon information furnished in writing
by the Placement Agent regarding the Placement Agent
expressly for use therein. Such information provided by
the Placement Agent for the Delaware Feeder Prospectus
shall be referred to herein as the "DELAWARE FEEDER'S
PLACEMENT AGENT'S INFORMATION."
(ii) The Delaware Feeder Fund has been duly organized, is
validly existing as a statutory trust and is in
good standing under the laws of the State of Delaware
and has the power and authority to own its assets, to
conduct its business as described in the Delaware Feeder
Prospectus and to execute, deliver and perform its
obligations under this Agreement, the Delaware Feeder
Organizational Documents, the Custodial Agreement, the
Investment Manager Agreement, by and between the
Delaware Feeder Fund and the Investment Manager (the
"DELAWARE INVESTMENT MANAGER AGREEMENT") and any
subscription or purchase agreements relating to the
Delaware Feeder Shares as between the Issuer and the
Delaware Feeder
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Fund, or relating to the Delaware Feeder
Shares as between the Delaware Feeder Fund and the
purchasers named therein (collectively, the "DELAWARE
RELATED AGREEMENTS"), except to the extent that the
failure to be in good standing would not have a material
adverse effect on the Delaware Feeder Fund.
(iii) On the Closing Date, the anticipated capital structure
of the Delaware Feeder Fund is substantially as
set forth in the Delaware Feeder Prospectus and the
Delaware Feeder Shares conform in all material respects
to the description of them in the Delaware Feeder
Prospectus and, when issued and paid for pursuant to the
terms of the subscription agreements, the Delaware
Feeder Shares will be fully paid and non-assessable, and
the issuance of such Delaware Feeder Shares will not be
subject to any preemptive or similar right. On the
Closing Date, the Delaware Feeder Shares will have been
duly authorized by the Delaware Feeder Fund and each of
the Delaware Related Agreements will have been duly
authorized by the Delaware Feeder Fund and, when
executed and delivered by the Delaware Feeder Fund and
the other parties thereto, will constitute a valid and
legally binding agreement of the Delaware Feeder Fund
enforceable against the Delaware Feeder Fund in
accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to
general equity principles, and except as rights to
indemnity thereunder may be limited by federal or state
securities laws.
(iv) The execution and delivery by the Delaware Feeder Fund
of, and the performance by the Delaware Feeder Fund of
its obligations under, each of the Delaware Related
Agreements does not and will not contravene any
provision of applicable law or the Delaware Feeder
Organizational Documents or any agreement or other
instrument binding upon the Delaware Feeder Fund that is
material to the Delaware Feeder Fund, or any judgment,
order or decree of any governmental body, agency or
court having jurisdiction over the Delaware Feeder Fund,
and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is
required for the performance by the Delaware Feeder Fund
of its obligations relating to the Delaware Feeder
Shares or under any of the Delaware Related Agreements,
except such as may be required under foreign or state
securities or Blue Sky laws in any jurisdiction in
connection with the sale of the Delaware Feeder Shares,
the Exemptive Order, and such other approvals
as have been obtained and are in full force and effect.
(v) The Delaware Feeder Fund owns, possesses or has obtained
all necessary consents, licenses, authorizations,
approvals, orders, certificates and permits of and from,
and has made all declarations and filings with, all
federal, state, local and other governmental
authorities, all self-regulatory
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organizations and all courts and other tribunals,
whether foreign or domestic, required for the execution,
delivery or performance by the Delaware Feeder Fund of
this Agreement and to own and use its assets and to
conduct its business in the manner described in the
Delaware Feeder Prospectus, except for the Exemptive
Order (as defined above).
(vi) There are no legal or governmental proceedings
pending or, to the Delaware Feeder Fund's knowledge
after due inquiry, threatened to which the Delaware
Feeder Fund is a party or to which any of the assets
of the Delaware Feeder Fund is subject.
(vii) Assuming that the representations, warranties and
covenants made by the Placement Agent in this Agreement
are true and correct and have been and will be complied
with, that the representations, warranties and covenants
made or deemed to be made by holders of the Delaware
Feeder Shares in the subscription agreements relating to
such Delaware Feeder Shares are true and correct and
have been and will be complied with and that the
Delaware Feeder Shares are offered and sold by the
Placement Agent in accordance with the Delaware Feeder
Prospectus, no registration of the Feeder Shares under
the Securities Act is required for the offer, sale and
delivery of the Delaware Feeder Shares.
(viii) The Delaware Feeder Fund has not taken, directly or
indirectly, any action prohibited by Rule 102 of
Regulation M under the Exchange Act.
(ix) Neither the Delaware Feeder Fund nor any of its
Affiliates has directly, or through any agent, (a) sold,
offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in
the Securities Act) which is or will be integrated with
the sale of the Common Shares or Feeder Shares in a
manner that would require the registration under the
Securities Act of the Common Shares or Feeder Shares or
(b) engaged in any form of general solicitation or
general advertising in connection with the offering of
Common Shares or Feeder Shares (as those terms are used
in Regulation D under the Securities Act) or sold,
offered for sale or solicited offers to buy Common
Shares or Feeder Shares in any manner involving a public
offering within the meaning of Section 4(2) of the
Securities Act.
(x) The Delaware Feeder Prospectus, together with the
Final Common Share PPM, complies in all material
respects with the applicable requirements of
Regulation D under the Securities Act.
(xi) Based on the procedures set forth in the Delaware
Feeder Organizational Documents and this Agreement,
the Delaware Feeder Fund has a reasonable belief that
initial sales and subsequent transfers of the
Delaware Feeder Shares will be limited to persons who
are Qualified Investors.
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(xii) There is no action, suit or proceeding before or by
any court, commission, regulatory body,
administrative agency or other governmental agency or
body, foreign or domestic, now pending, or to the
knowledge of the Delaware Feeder Fund, threatened
against or affecting the Delaware Feeder Fund, which
might result in any material adverse change in the
condition, financial or otherwise, business affairs
or business prospects of the Delaware Feeder Fund or
might materially adversely affect the properties or
assets of the Issuer or the Delaware Feeder Fund.
(xiii) The Delaware Feeder Fund represents that it has
policies, procedures and internal controls in place
that are reasonably designed to comply with all
anti-money laundering laws and regulations applicable
to it, including applicable provisions of the USA
PATRIOT Act of 2001 and the regulations administered
by the U.S. Department of the Treasury's Office of
Foreign Assets Control.
C. Representations and Warranties of the Cayman Feeder Fund. The Cayman
Feeder Fund represents and warrants to, and agrees with the Placement Agent
that, as of the date hereof and as of the Closing Date (as defined in Section 4
hereof):
(i) The Cayman Feeder Prospectus (which, for purposes of
this sentence shall be deemed to include additional
materials provided to prospective investors by or on
behalf of the Cayman Feeder Fund where such materials:
(a) have been reviewed and approved by the Investment
Manager or (b) were provided by the Investment Manager
to the Cayman Feeder Fund, the Placement Agent or to
prospective investors) as of the date thereof does not,
and as of the Closing Date will not, contain any untrue
statement of a material fact or omit any material fact
necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading, except that the representations and
warranties set forth in this Section 1(C)(i) do not
apply to statements or omissions in the Cayman Feeder
Prospectus based upon information furnished in writing
by the Placement Agent regarding the Placement Agent
expressly for use therein. Such information provided by
the Placement Agent for the Cayman Feeder Prospectus
shall be referred to herein as the "CAYMAN FEEDER'S
PLACEMENT AGENT'S INFORMATION."
(ii) The Cayman Feeder Fund has been duly incorporated, is
validly existing as an exempted company and is in
good standing under the laws of the Cayman Islands and
has the power and authority to own its assets, to
conduct its business as described in the Cayman Feeder
Prospectus and to execute, deliver and perform its
obligations under this Agreement, the Cayman Feeder
Organizational Documents, the Custodial Agreement, the
Investment Manager Agreement, by and between the Cayman
Feeder Fund and the Investment Manager (the "CAYMAN
INVESTMENT MANAGER AGREEMENT") and any subscription or
purchase agreements relating to the Cayman Feeder Shares
as between the Issuer and the Cayman Feeder
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Fund, or relating to the Cayman Feeder Shares as between
the Cayman Feeder Fund and the purchasers named therein
(collectively, the "CAYMAN RELATED AGREEMENTS"), except
to the extent that the failure to be in good standing
would not have a material adverse effect on the Cayman
Feeder Fund.
(iii) On the Closing Date, the anticipated capital structure
of the Cayman Feeder Fund is substantially as set
forth in the Cayman Feeder Prospectus and the Cayman
Feeder Shares conform in all material respects to the
description of them in the Cayman Feeder Prospectus and,
when issued and paid for pursuant to the terms of the
subscription agreements, the Cayman Feeder Shares will
be fully paid and non-assessable, and the issuance of
such Cayman Feeder Shares will not be subject to any
preemptive or similar right. On the Closing Date, the
Cayman Feeder Shares will have been duly authorized by
the Cayman Feeder Fund and each of the Cayman Related
Agreements will have been duly authorized by the
Cayman Feeder Fund and, when executed and delivered by
the Cayman Feeder Fund and the other parties thereto,
will constitute a valid and legally binding agreement of
the Cayman Feeder Fund enforceable against the Cayman
Feeder Fund in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights
and to general equity principles, and except as rights
to indemnity thereunder may be limited by federal or
state securities laws.
(iv) The execution and delivery by the Cayman Feeder Fund of,
and the performance by the Cayman Feeder Fund of its
obligations under, each of the Cayman Related Agreements
does not and will not contravene any provision of
applicable law or the Cayman Feeder Organizational
Documents or any agreement or other instrument binding
upon the Cayman Feeder Fund that is material to the
Cayman Feeder Fund, or any judgment, order or decree of
any governmental body, agency or court having
jurisdiction over the Cayman Feeder Fund, and no
consent, approval, authorization or order of, or
qualification with, any governmental body or agency is
required for the performance by the Cayman Feeder Fund
of its obligations relating to the Cayman Feeder Shares
or under any of the Cayman Related Agreements, except
such as may be required under foreign or state
securities or Blue Sky laws in any jurisdiction in
connection with the sale of the Cayman Feeder Shares,
the Exemptive Order, and such other approvals as have
been obtained and are in full force and effect.
(v) The Cayman Feeder Fund owns, possesses or has
obtained all necessary consents, licenses,
authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations
and filings with, all federal, state, local and other
governmental authorities, all self-regulatory
organizations and all courts and other tribunals,
whether foreign or
11
domestic, required for the execution, delivery or
performance by the Cayman Feeder Fund of this Agreement
and to own and use its assets and to conduct its
business in the manner described in the Cayman Feeder
Prospectus, except for the Exemptive Order.
(vi) There are no legal or governmental proceedings
pending or, to the Cayman Feeder Fund's knowledge
after due inquiry, threatened to which the Cayman
Feeder Fund is a party or to which any of the assets
of the Cayman Feeder Fund is subject.
(vii) Assuming that the representations, warranties and
covenants made by the Placement Agent in this Agreement
are true and correct and have been and will be complied
with, that the representations, warranties and covenants
made or deemed to be made by holders of the Cayman
Feeder Shares in the subscription agreements relating to
such Cayman Feeder Shares are true and correct and have
been and will be complied with and that the Cayman
Feeder Shares are offered and sold by the Placement
Agent in accordance with the Cayman Feeder Prospectus,
no registration of the Cayman Feeder Shares under the
Securities Act is required for the offer, sale and
delivery of the Cayman Feeder Shares.
(viii) The Cayman Feeder Fund has not taken, directly or
indirectly, any action prohibited by Rule 102 of
Regulation M under the Exchange Act.
(ix) Neither the Cayman Feeder Fund nor any of its Affiliates
has directly, or through any agent, (a) sold, offered
for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in
the Securities Act) which is or will be integrated with
the sale of the Common Shares or Feeder Shares in a
manner that would require the registration under the
Securities Act of the Common Shares or Feeder Shares or
(b) engaged in any form of general solicitation or
general advertising in connection with the offering of
Common Shares or Feeder Shares (as those terms are used
in Regulation D under the Securities Act) or sold,
offered for sale or solicited offers to buy Common
Shares or Feeder Shares in any manner involving a public
offering within the meaning of Section 4(2) of the
Securities Act.
(x) The Cayman Feeder Prospectus, together with the Final
Common Share PPM, complies in all material respects
with the applicable requirements of Regulation D
under the Securities Act.
(xi) Based on the procedures set forth in the Cayman
Feeder Organizational Documents and this Agreement,
the Cayman Feeder Fund has a reasonable belief that
initial sales and subsequent transfers of the Cayman
Feeder Shares will be limited to persons who are
Qualified Investors.
12
(xii) There is no action, suit or proceeding before or by
any court, commission, regulatory body,
administrative agency or other governmental agency or
body, foreign or domestic, now pending, or to the
knowledge of the Cayman Feeder Fund, threatened
against or affecting the Cayman Feeder Fund, which
might result in any material adverse change in the
condition, financial or otherwise, business affairs
or business prospects of the Cayman Feeder Fund or
might materially adversely affect the properties or
assets of the Issuer or the Cayman Feeder Fund.
(xiii) The Cayman Feeder Fund represents that it has
policies, procedures and internal controls in place
that are reasonably designed to comply with all
anti-money laundering laws and regulations applicable
to it, including applicable provisions of the USA
PATRIOT Act of 2001 and the regulations administered
by the U.S. Department of the Treasury's Office of
Foreign Assets Control.
2. Representations and Warranties of the Investment Manager.
The Investment Manager represents and warrants to, and agrees with, the
Placement Agent that, as of the date hereof and as of the Closing Date (as
defined in Section 4 hereof):
(i) The Investment Manager has been duly formed and is
validly existing as a limited liability company under
the laws of New York and has full power and authority to
conduct all of the activities to be conducted by it, to
own or lease all of the assets owned or leased by it and
to conduct its business as described in the Final Common
Share PPM and Feeder Prospectuses, and is duly licensed
and qualified to do business and is in good standing in
each jurisdiction in which it is required to be so
qualified, except to the extent that failure to be so
qualified or be in good standing would not have a
material adverse affect on its ability to provide
services to the Issuer; and owns, possesses or has
obtained (except for the Exemptive Order) and currently
maintains all governmental licenses, permits, consents,
orders, approvals and other authorizations, whether
foreign or domestic, necessary to carry on its business
as contemplated in the Final Common Share PPM and Feeder
Prospectuses.
(ii) The Investment Manager has full power and authority to
enter into this Agreement and the Investment Management
Agreement with the Issuer, the Delaware Investment
Manager Agreement, and the Cayman Investment Manager
Agreement (collectively, the "INVESTMENT MANAGEMENT
AGREEMENT") and to carry out all the terms and
provisions hereof and thereof to be carried out by it;
and this Agreement and the Investment Management
Agreement have been duly and validly authorized,
executed and delivered by the Investment Manager; this
Agreement and the Investment Management Agreement do not
violate in any material respect any of the applicable
provisions of the Investment Company Act or the Advisers
Act; and assuming due authorization,
13
execution and delivery by the other parties thereto,
this Agreement and the Investment Management Agreement
constitute legal, valid and binding obligations of the
Investment Manager, enforceable in accordance with its
terms, subject, as to enforcement, to applicable
bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought
in a proceeding in equity or at law) and except as
rights to indemnity thereunder may be limited by federal
or state securities laws.
(iii) (a) The Investment Manager is (I) registered as an
investment adviser under the Advisers Act and (II) not
prohibited by the Advisers Act or the Investment Company
Act from acting as the investment adviser for the Issuer
as contemplated by this Agreement and the Investment
Management Agreement or the Final Common Share PPM, and
(b) each of this Agreement and the Related Agreements to
which the Investment Manager is a party does not violate
in any material respect any of the applicable provisions
of the Investment Company Act or the Advisers Act.
(iv) Neither (a) the execution and delivery by the Investment
Manager of this Agreement or the Investment Management
Agreement nor (b) the consummation by, the Investment
Manager of the transactions contemplated by, or the
performance of its obligations under this Agreement or
the Investment Management Agreement conflicts or will
conflict with, or results or will result in a breach of,
the governing documents of the Investment Manager or any
agreement or instrument to which the Investment Manager
is a party or by which the Investment Manager is bound,
or any law, rule or regulation, or order of any court,
governmental instrumentality, securities exchange or
association or arbitrator, whether foreign or domestic,
applicable to the Investment Manager.
(v) Except for the Exemptive Order, no other consent,
approval, exemptive order, authorization or order of
any court, governmental agency or body or securities
exchange or association, whether foreign or domestic,
is required for the consummation of the transactions
contemplated in, or the performance by the Investment
Manager of its obligations under, this Agreement or the
Investment Management Agreement, except such as (a) have
been obtained under the Securities Act, the Investment
Company Act, or the Advisers Act, and (b) may be
required under foreign or state securities or Blue Sky
laws, in connection with the placement of Common Shares
by the Placement Agent pursuant to this Agreement.
(vi) The description of the Investment Manager and its
business and the statements attributable to the
Investment Manager (A) in the Final Common Share PPM
comply with the requirements of the Investment Company
Act and (B) in the Final Common Shares PPM and the
Feeder Prospectuses do not contain any untrue
statement of a material fact or omit
14
to state any material fact required to be stated therein
or necessary in order to make the statements therein, in
light of the circumstances under which they were made,
not misleading.
(vii) There is no action, suit or proceeding before or by any
court, commission, regulatory body, administrative
agency or other governmental agency or body, foreign or
domestic, now pending or, to the knowledge of the
Investment Manager, threatened against or affecting the
Investment Manager of a nature required to be disclosed
in the Final Common Share PPM or the Feeder Prospectuses
or that might reasonably be expected to result in any
material adverse change in the condition, financial or
otherwise, business affairs or business prospects of the
Investment Manager or the ability of the Investment
Manager to fulfill its obligations under this Agreement
or the Investment Management Agreement.
(viii) The Investment Manager is in compliance and will,
through the completion of the transactions contemplated
in this Agreement, continue to be in compliance with the
provisions of the Investment Company Act and the
Advisers Act except to the extent that any failure to so
comply would not have a material adverse effect on the
Issuer or any holder of the Securities.
(ix) The Investment Manager represents that it has policies,
procedures and internal controls in place that are
reasonably designed to comply with all rules and
regulations of the Investment Company Act, the Advisers
Act and anti-money laundering laws and regulations
applicable to it, including applicable provisions of the
USA PATRIOT Act of 2001 and the regulations administered
by the U.S. Department of the Treasury's Office of
Foreign Assets Control.
3. Solicitation as Agent; Offers and Sales of Common Shares and Feeder
Shares.
(a) It is agreed that the offering of the Common Shares and
the Feeder Shares will be made on a private placement basis, and
the Placement Agent represents and agrees that it has not and
will not solicit offers for, or offer or sell, Common Shares or
Feeder Shares by any form of general solicitation or advertising
or in any manner involving a public offering within the meaning
of Section 4(2) of the Securities Act and Regulation D
thereunder. The Issuer authorizes the Placement Agent to use
the Common Share PPM in connection with the offer and sale of
the Common Shares and each Feeder Fund authorizes the Placement
Agent to use each of the Feeder Prospectuses, together with the
Final Common Share PPM, in connection with the offer and sale
of the applicable Feeder Shares.
(b) Each of the Investment Manager, the Issuer and the
Feeder Funds shall not, and shall each cause each of their
respective affiliates not to (i) directly or indirectly solicit
any person it knows to be a client of the Placement Agent as a
result of the activities of the Placement Agent pursuant to this
Agreement (A) to
15
purchase an interest in any investment entity
sponsored or offered by the Investment Manager or any of its
affiliates (other than interests with the consent of the
Placement Agent), (B) to enter into an agreement for the
management of any assets of such client by the Investment
Manager or any of its affiliates or (C) to curtail or cancel
such client's business relationship with the Placement Agent or
(ii) permit any person introduced to the Investment Manager, the
Issuer or the Feeder Funds by the Placement Agent as a result of
its activities pursuant to this Agreement to invest in the
Issuer or the Feeder Funds or any related investment vehicle,
without the consent of the Placement Agent.
4. Purchase and Delivery, Closing; Placement Agent's Fee.
(a) The Common Shares to be purchased by the purchasers
thereof shall be delivered in such manner agreed upon by the
Issuer and such purchasers.
(b) The Issuer covenants and agrees with the Placement Agent
that not later than 6:00 p.m., New York City time, on November
17, 2005 or on such other date or at such other time as the
Placement Agent and the Issuer may otherwise agree (such date
being herein called the "CLOSING DATE" and such time being
herein called the "CLOSING TIME"), the Issuer will pay or
cause to be paid in U.S. Dollars the fee set forth in a letter
agreement, dated as of November 17, 2005 (the "FEE Letter")
between the Issuer and the Placement Agent (the "PLACEMENT
AGENT'S FEE") to the Placement Agent.
5. Conditions to Closing.
(a) All actions and other legal matters incident to the
authorization, form and validity of this Agreement, the
Operating Agreement, the Related Agreements, the Common Shares,
the Preferred Shares, the shares of the Feeder Funds, the Final
Common Share PPM, and all actions and other legal matters
relating to this Agreement and the transactions contemplated
hereby, shall be satisfactory in all material respects to the
Placement Agent and counsel for the Placement Agent, and each of
the Issuer and the Feeder Funds shall have furnished to such
counsel all documents and information that such counsel may
reasonably request in connection with this Agreement, the
Operating Agreement, the Related Agreements, the Delaware Feeder
Organizational Documents, the Delaware Related Agreements, the
Cayman Feeder Organizational Documents, the Cayman Related
Agreements and the transactions contemplated hereby and thereby.
(b) Copies of the Final Common Share PPM and the Feeder
Prospectuses (and any amendments or supplements thereto) shall
have been distributed to the Placement Agent in accordance
with this Agreement, and the sale of the Common Shares and the
Feeder Shares shall not have been suspended in any
jurisdiction and no suspension proceeding shall have been
commenced or shall be pending or threatened.
16
(c) The obligations of the Placement Agent under this
Agreement, as agent of the Issuer and the Feeder Funds, to
solicit offers to purchase Securities and Feeder Shares will be
subject to (i) the accuracy as of the date hereof and the
Closing Date (as if made at the Closing Date) of (x) the
representations and warranties on the part of the Issuer, each
Feeder Fund and the Investment Manager and (y) the statements of
the authorized representatives of the Issuer, each Feeder Fund
and the Investment Manager made in any certificates pursuant to
the provisions hereof, (ii) the performance by each of the
Issuer, each Feeder Fund and the Investment Manager of its
obligations hereunder and (iii) the following additional
conditions precedent.
(d) The Preferred Shares and the Notes to be issued under
the Indenture must have received a "Aaa" rating from Xxxxx'x
Investors Service, Inc. ("MOODY'S") and a "AAA" rating from
Standard & Poor's Rating Services, a division of the
XxXxxx-Xxxx Companies, Inc. ("S&P").
(e) Closing Certificate. At the Closing Time, there shall
not have been, since the date hereof or since the respective
dates as of which information is given in the Final Common Share
PPM or the Feeder Prospectuses (except as otherwise stated
therein), any material adverse change in the condition,
financial or otherwise, or in the business affairs or business
prospects of the Issuer, the Feeder Funds or the Investment
Manager, as the case may be, whether or not arising in the
ordinary course of business, and the Placement Agent shall have
received a certificate of each of the Issuer, each Feeder Fund
and the Investment Manager, dated as of the Closing Date, to the
effect that (i) there has been no such material adverse change
of the Issuer, the Feeder Funds or the Investment Manager, as
applicable, (ii) the representations and warranties made by the
Issuer, each Feeder Fund and the Investment Manager, as
applicable, in this Agreement and in the respective Related
Agreements are true and correct with the same force and
effect as though expressly made at and as of the Closing Time
(unless any such representation or warranty specifically relates
to an earlier time) and (iii) each of the Issuer, each Feeder
Fund and the Investment Manager has complied with all agreements
and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time.
(f) Opinion of Counsel for the Investment Manager. The
Placement Agent shall have received on the Closing Date an
opinion of Xxxxxx & Xxxxxx LLP, counsel for the Investment
Manager, dated the Closing Date, in form and substance
reasonably satisfactory to the Placement Agent and its counsel.
(g) Execution and Delivery of Indenture. At the Closing
Time, the Indenture, the Note Purchase Agreement and the Fee
Letter shall have been executed and delivered by the parties
thereto in form reasonably satisfactory to the Placement Agent
and its counsel; the Indenture and the Fee Letter shall be in
full force and effect.
17
(h) Commitments for Shares in Issuer. At the Closing Time,
$325.0 million commitments to purchase Common Shares of the
Issuer and $109.0 million commitments to purchase Preferred
Shares of the Issuer shall have been received by the Issuer.
(i) Irish Stock Exchange. Each of the Feeder Funds shall
have applied for listing on the Irish Stock Exchange.
(j) Execution and Delivery of Other Related Agreements. The
other Related Agreements shall have been executed and delivered
by the parties thereto in form reasonably satisfactory to the
Placement Agent and its counsel, executed versions of such
other Related Agreements shall have been delivered to the
Placement Agent and all of the Related Agreements shall be in
full force and effect.
(k) Additional Documents. At the Closing Time, counsel for
the Placement Agent shall have been furnished with such other
documents as they may reasonably request in order to evidence
the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained;
and all actions taken by the Issuer in connection with the
issuance and sale of the Common Shares and each Feeder Fund in
connection with the issuance and sale of the Feeder Shares as
herein contemplated shall be satisfactory in form and
substance in all material respects to the Placement Agent and
counsel for the Placement Agent.
(l) There shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations, of the Issuer or Investment Manager, taken as a
whole, that is material and adverse and that makes it, in the
Placement Agent's judgment, impracticable to market any of the
Common Shares on the terms and in the manner contemplated in
this Agreement.
The Issuer and each Feeder Fund will furnish the Placement Agent with
such conformed copies of such opinions, certificates, letters and documents as
the Placement Agent may reasonably request.
6. Covenants of the Issuer, the Investment Manager and the Feeder Funds.
(a) In further consideration of the agreements of the
Placement Agent herein contained, each of the Issuer and
Investment Manager covenants as follows:
(i) To file (A) the Notification on or prior to the Closing
Date, (B) the Registration Statement on or prior to the
Closing Date and any amendments to the Registration
Statement as requested by the SEC and (C) any other
filings required pursuant to the Investment Company Act
or described in the Private Placement Documents
(including the Exemptive Order) or requested by the
SEC or any other regulatory or governing body; and to
distribute complete copies of such filings to the
Placement Agent and to counsel for the Placement Agent
in a prompt manner.
18
(ii) To cause the Registration Statement to comply in all
material respects with the applicable requirements of
the Advisers Act and the Investment Company Act during
the period commencing on the date it is filed and ending
when the Common Shares have been fully drawn or may no
longer be drawn.
(iii) To advise the Placement Agent promptly of receipt by the
Issuer of any notice from the SEC pursuant to Section
8(e) of the Investment Company Act with respect to the
Notification, or any amendment or supplement thereto, or
the Registration Statement, or any amendment or
supplement thereto.
(iv) To maintain a compliance program reasonably designed to
prevent violations of the Federal Securities Laws as
defined in Rule 38a-l under the Investment Company Act
("FEDERAL SECURITIES LAWS").
(v) To maintain policies, procedures and internal controls
that are reasonably designed to comply with all rules
and regulations of the Investment Company Act, the
Advisers Act and anti-money laundering laws and
regulations, including applicable provisions of the USA
PATRIOT Act of 2001 and the regulations administered by
the U.S. Department of the Treasury's Office of Foreign
Assets Control.
(vi) To furnish the Placement Agent and its counsel, without
charge, for a reasonable period, as many copies of the
Final Common Share PPM and any supplements and
amendments thereto as the Placement Agent may reasonably
request.
(vii) During the period mentioned in paragraph (viii) below,
before amending or supplementing the Final Common Share
PPM, to furnish the Placement Agent a copy of each such
proposed amendment or supplement.
(viii) If, during the period commencing on the date hereof and
ending when the Common Shares have been fully drawn or
may no longer be drawn, any event shall occur or
condition shall exist that makes it necessary, in the
opinion of the counsel for the Placement Agent, to amend
or supplement the Final Common Share PPM (as then
amended or supplemented) in order to make the statements
therein, in the light of the circumstances under which
such document (as then amended or supplemented) is
delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Final Common Share
PPM to comply with law, to, after discussing the same
with the Placement Agent, the Investment Manager and
their counsel, prepare and furnish, at its own expense
(which shall not be unreasonable), to the Placement
Agent, either amendments or supplements, as the case may
be, so that the statements in the Final Common Share PPM
as so amended or supplemented will not, in the light of
the circumstances when the Final Common Share PPM is
delivered to a
19
purchaser, be misleading or so that the
Final Common Share PPM will comply with applicable law.
(ix) To provide each prospective investor with an opportunity
to inquire of the Issuer and the Investment Manager
about the terms and conditions of the offering and to
obtain any information such investor may reasonably
consider necessary for making an informed investment
decision.
(x) To supply to the Placement Agent (A) copies of all
materials provided by the Issuer to the holders of
Preferred Shares and Notes, (B) copies of all SEC
filings made by the Issuer and all correspondences
between the Issuer and the SEC, (C) copies of the weekly
collateral valuation schedule (redacted to delete the
identity of specific holdings) that the Issuer makes
available to any Rating Agency in connection with the
Preferred Shares and (D) to the extent permitted by
applicable law, rule or regulation, copies of any
other correspondence or information in connection with
the Related Agreements and the transactions contemplated
by this Agreement and the Related Agreements as the
Placement Agent and the Investment Manager shall agree
from time to time.
(xi) To advise the Placement Agent, promptly after the Issuer
shall receive notice or obtain actual knowledge thereof,
of the suspension of the qualification of the Common
Shares for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceeding for any
such purpose; and, in the event of the issuance of any
order suspending any such qualification, to use its best
efforts to obtain the withdrawal of such order promptly.
(xii) Promptly to take such action as the Placement Agent
shall reasonably request to qualify the Common Shares
for offer and sale under the securities laws of such
jurisdictions where the Placement Agent has placed
Common Shares and to maintain such qualifications in
effect for so long as required for the placement of the
Common Shares by the Placement Agent, except that the
Issuer shall not be required in connection therewith to
qualify as a foreign corporation or to execute a general
consent to service of process in any state.
(xiii) To hold the Placement Agent harmless against any
documentary, stamp or similar transfer or issue tax,
including any interest and penalties, on the issue, sale
and delivery of the Common Shares in accordance with the
terms of this Agreement and on the execution and
delivery of the other Related Agreements which are or
may be required to be paid under the laws of any
jurisdiction or any political subdivision or taxing
authority thereof or therein. All payments to be made
by the Issuer hereunder and in respect of the
transactions contemplated hereunder and under the
Related Agreements shall be made pursuant to and in
accordance with the applicable Related Agreements in
U.S. Dollars, at such place as indicated
20
by the Placement Agent, without withholding or deduction
for or on account of any present or future taxes,
duties or governmental charges whatsoever, unless the
Issuer shall pay such additional amounts as may be
necessary in order that the net amounts after such
withholding or deduction shall equal the amounts
that would have been payable if no such withholding or
deduction had been made, to the extent required by the
applicable Related Agreement.
(xiv) To cause the Investment Manager to provide information
reasonably necessary in connection with, and otherwise
reasonably cooperate in, the preparation of any of the
amendments, supplements or other documents prepared
pursuant to paragraphs (vii), (viii) and (xi) above.
(xv) So long as the Common Shares are outstanding, each of
the Issuer and the Investment Manager will use its
reasonable best efforts to ensure (A) the continued
effectiveness with the SEC of the Registration
Statement, and amendments or supplements thereto and (B)
that the Registration Statement, and any amendment or
supplement thereto comply with all requirements of the
Investment Company Act and do not contain any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or necessary
in order to make the statements therein not misleading
in the light of the circumstances under which they were
made. Each of the Issuer and the Investment Manager
will use its best efforts to comply with the applicable
provisions of the Investment Company Act and will use
its best efforts to continue to qualify for the special
tax treatment afforded to registered investment
companies under Subchapter M of the Code.
(xvi) Neither the Issuer nor any of its Affiliates will sell,
offer for sale or solicit offers to buy or otherwise
negotiate in respect of the Common Shares or any
security (as defined in the Securities Act) which (A) is
or will be integrated with the sale of the Common Shares
in a manner which would require the registration of the
Common Shares under the Securities Act, or (B) would
cause the offer and sale of the Common Shares pursuant
to this Agreement to fail to be entitled to the
exemption from registration afforded by Section 4(2) of
the Securities Act.
(xvii) To not solicit any offer to buy, offer, sell, contract
to sell or otherwise dispose of Common Shares by means
of any form of general solicitation or general
advertising (as those terms are used in Regulation D
under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of
the Securities Act, and in furtherance of the foregoing
to not publish or disseminate any material naming or
referring to the Placement Agent in connection with any
offering of the Common Shares unless the Placement Agent
shall have consented to the publication or use thereof.
21
(xviii) To make available appropriate officers and employees,
and, upon reasonable request to the Investment Manager,
access to consultants (e.g., independent accountants and
legal counsel) to respond to reasonable information
requests by the Placement Agent and to provide the
Placement Agent with such information as the Placement
Agent may reasonably request.
(xix) Until the Common Shares have been fully drawn or may no
longer be drawn, not to, unless first providing notice
to the Placement Agent, (A) modify any Related
Agreement, (B) terminate the Investment Manager, (C)
appoint a replacement investment manager, or (D) consent
to the assignment of the Investment Management
Agreement.
(xx) The Issuer agrees that while any Common Shares remain
outstanding it will make available, upon request, to any
holder of the Common Shares the information specified in
Rule 502(b) under the Securities Act unless the Issuer
is then subject to the reporting requirement of Section
13 or Section 15(d) of the Exchange Act.
(xxi) So long as the Issuer is registered under the Investment
Company Act, the Issuer and the Investment Manager shall
timely and promptly file all reports and forms (e.g.,
N-CSR, ADV) with the SEC as required by the Investment
Company Act and the Advisers Act and shall provide
shareholders and prospective shareholders with timely
reports as required by the Investment Company Act.
(b) In further consideration of the agreements of the
Placement Agent herein contained, each of the Feeder Funds and
Investment Manager covenants as follows:
(i) To furnish the Placement Agent and its counsel, without
charge, for a reasonable period, as many copies of the
Feeder Prospectuses and any supplements and amendments
thereto as the Placement Agent may reasonably request.
(ii) Before amending or supplementing the Feeder
Prospectuses, to furnish the Placement Agent a copy of
each such proposed amendment or supplement.
(iii) To provide each prospective investor with an opportunity
to inquire of the Delaware Feeder Fund or the Cayman
Feeder Fund, as the case may be, and the Investment
Manager about the terms and conditions of the offering
and to obtain any information such investor may
reasonably consider necessary for making an informed
investment decision.
(iv) To advise the Placement Agent, promptly after the
Delaware Feeder Fund or the Cayman Feeder Fund, as the
case may be, shall receive notice or obtain actual
knowledge thereof, of the suspension of the
qualification of
22
the Delaware Feeder Shares or the Cayman Feeder Shares,
as the case may be, for offering or sale in any
jurisdiction, or of the initiation or threatening of any
proceeding for any such purpose; and, in the event of
the issuance of any order suspending any such
qualification, to use its best efforts to obtain the
withdrawal of such order promptly.
(v) Promptly to take such action as the Placement Agent
shall reasonably request to qualify the Delaware
Feeder Shares or the Cayman Feeder Shares, as the case
may be, for offer and sale under the securities laws of
such jurisdictions where the Placement Agent has placed
Delaware Feeder Shares or the Cayman Feeder Shares, as
the case may be, and to maintain such qualifications in
effect for so long as required for the placement of
the Delaware Feeder Shares or the Cayman Feeder Shares,
as the case may be, by the Placement Agent, except that
the Delaware Feeder Fund or the Cayman Feeder Fund, as
the case may be, shall not be required in connection
therewith to qualify as a foreign corporation or to
execute a general consent to service of process in any
state.
(vi) None of the Feeder Funds nor any of their Affiliates
will sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of the Feeder Shares or
any security (as defined in the Securities Act) which
(A) is or will be integrated with the sale of the Feeder
Shares in a manner which would require the registration
of the Feeder Shares under the Securities Act, or (B)
would cause the offer and sale of the Feeder Shares
pursuant to this Agreement to fail to be entitled to the
exemption from registration afforded by Section 4(2) of
the Securities Act.
(vii) To not solicit any offer to buy, offer, sell, contract
to sell or otherwise dispose of Feeder Shares by means
of any form of general solicitation or general
advertising (as those terms are used in Regulation D
under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of
the Securities Act, and in furtherance of the foregoing
to not publish or disseminate any material naming or
referring to the Placement Agent in connection with any
offering of the Feeder Shares unless the Placement Agent
shall have consented to the publication or use thereof.
(c) In further consideration of the agreements of the
Placement Agent herein contained, the Issuer hereby agrees that
(i) on or prior to the Closing Date the Issuer will have filed
the Notification with the SEC under the Investment Company Act
as a nondiversified, closed-end management investment company
and all action under the Securities Act and the Investment
Company Act, as the case may be, necessary to consummate the
sale of the Common Shares as provided in this Agreement has or
will have been taken by the Issuer and (ii) the Issuer will be
in compliance with the terms and conditions of the Investment
Company Act at all times through the completion of the
transactions contemplated in this Agreement.
23
7. Fees and Expenses.
The Issuer covenants and agrees with the Placement Agent and any
purchasers of the Common Shares who purchase Common Shares through the Placement
Agent that the Issuer will pay, or cause to be paid, whether or not any sale of
the Common Shares is consummated, all expenses incident to the performance of
the Issuer's obligations under the Related Agreements, including: (i) the
preparation and printing of the Final Common Share PPM, the Feeder Prospectuses
and all amendments and supplements thereto (except as otherwise provided
herein), (ii) all fees and expenses in connection with the qualification of the
Common Shares for offering and sale under applicable foreign and U.S. securities
laws as provided herein, including any Blue Sky and legal investment memoranda
and any other agreement or documents in connection with the offering, purchase,
sale and delivery of the Common Shares, (iii) the fees and disbursements of
Xxxxx Day, counsel for the Issuer, the fees and disbursements for local counsel
for the Issuer in various non-US jurisdictions and the fees and disbursements of
Xxxxxx & Xxxxxx LLP, counsel for the Investment Manager, (iv) the fees and
disbursements of Xxxxx Day, counsel for the Placement Agent, (v) the fees and
disbursements of the Issuer's accountants, if any, (vi) all fees and expenses
incurred in connection with the organization of the Issuer and the Feeder Funds,
(vii) all costs and expenses incurred in the preparation, issuance, printing and
delivery of the Common Shares, the Related Agreements and all other documents
relating to the issuance, purchase and sale of the Common Shares, and (viii) all
other costs and expenses incident to the performance by the Issuer of its
various obligations hereunder which are not otherwise specifically provided for
in this Section 7. The Issuer will also pay or cause to be paid any transfer,
stamp or value-added taxes payable in connection with the placement of the
Common Shares contemplated hereby. Such payments payable to the Placement Agent
shall be made promptly by wire transfer of immediately available funds to an
account specified by the Placement Agent.
8. Offering of Common Shares; Restrictions on Transfer: Certain Agreements
of the Placement Agent.
(a) The Placement Agent represents and agrees that it has
not and will not solicit any offer to buy, offer, sell, contract
to sell or otherwise dispose of Common Shares or Feeder Shares
by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act.
(b) The Placement Agent represents and warrants that it has
been duly organized, is validly existing and is in good standing
under the laws of the jurisdiction of its formation and has
the power and authority to own its assets, to conduct its
business as described in the Final Common Share PPM and Feeder
Prospectuses and to execute, deliver and perform its
obligations under this Agreement and the Fee Letter, except to
the extent that the failure to be in good standing would not
have a material adverse effect on the Placement Agent.
(c) The Placement Agent represents and warrants that the
execution and delivery by the Placement Agent of, and the
performance by the Placement Agent
24
of its obligations under, this Agreement and the Fee Letter does
not and will not contravene any provision of applicable law or
the charter or any agreement or other instrument binding upon
the Placement Agent that is material to the Placement Agent, or
any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Placement Agent, and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by the Placement Agent of its obligations relating
to the Common Shares, the Feeder Shares or under this Agreement
or the Fee Letter, except such as may be required under foreign
or state securities or Blue Sky laws in any jurisdiction in
connection with the sale of the Common Shares and Feeder Shares
and such other approvals as have been obtained and are in full
force and effect.
(d) The Placement Agent represents and warrants that it
owns, possesses or has obtained all necessary consents,
licenses, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts
and other tribunals, whether foreign or domestic, required for
the execution, delivery or performance by the Placement Agent of
this Agreement and to own and use its assets and to conduct
its business in the manner described in the Final Common Share
PPM and Feeder Prospectuses.
(e) The Placement Agent represents, warrants and agrees that
(i) it has not offered, sold, delivered or placed and, prior to
the completion of the period of six months from the Closing
Date, will not offer, sell, deliver or place any Securities or
Feeder Shares to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for
the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, as amended, (ii) it has
complied and will comply with all applicable provisions of the
Financial Services Act and Markets Act of 2000 (the "FSMA") with
respect to anything done by it in relation to the Securities or
Feeder Shares in, from or otherwise involving the United
Kingdom and (iii) it has only communicated or caused to be
communicated, and will only communicate or cause to be
communicated any invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the
FSMA) received by it in connection with the issue or sale of the
Securities or Feeder Shares in circumstances in which Section
21(1) of the FSMA does not apply to the Issuer.
(f) The Placement Agent represents, warrants and agrees with
respect to offers and sales outside the United States that (i)
it understands that no action has been or will be taken in any
jurisdiction by the Placement Agent, the Issuer, the Feeder
Funds or the Investment Manager that would permit a public
offering of the Common Shares or Feeder Shares, or possession or
distribution of the Common Share PPM or Feeder Prospectuses or
any other offering or public
25
material relating to the Common Shares or Feeder Shares in any
country or jurisdiction where action for that purpose is
required; and (ii) the Placement Agent has and will comply with
all applicable laws and regulations in each jurisdiction in
which it acquires, offers, sells or delivers Common Shares or
Feeder Shares or has in its possession or distributes Common
Share PPM, Feeder Prospectuses or any such other material, in
all cases at its own expense.
(g) The Placement Agent represents that it has policies,
procedures and internal controls in place that are reasonably
designed to comply with all anti-money laundering laws and
regulations applicable to it, including, in the case of Xxxxxx
Xxxxxxx, applicable provisions of the USA PATRIOT Act of 2001
and the regulations administered by the U.S. Department of the
Treasury's Office of Foreign Assets Control.
(h) The Placement Agent agrees that the Investment Manager
may reject any potential investor if such investor is not a
Qualified Investor, and the Placement Agent will not receive
any fee with respect to any such potential rejected investor.
(i) The Placement Agent did not use any materials that
describe the Issuer, the Feeder Funds, the Common Shares or the
Feeder Shares other than the Common Share PPM and the Feeder
Prospectuses or other materials approved by the Investment
Manager.
(j) Assuming that the representations, warranties and
covenants made by the Issuer, each Feeder Fund and the
Investment Manager in this Agreement are true and correct and
have been and will be complied with, that the representations,
warranties and covenants made or deemed to be made by holders
of the Common Shares and the Feeder Shares in the subscription
agreements relating to such Common Shares and the Feeder Shares
are true and correct and have been and will be complied with and
that the Common Shares and the Feeder Shares are offered and
sold by the Placement Agent in accordance with the Final Common
Share PPM and Feeder Prospectuses, the Placement Agent
represents and agrees that it has not and will not sell Common
Shares or Feeder Shares to persons who are not Qualified
Investors.
9. Indemnification and Contribution.
(a) The Issuer and each Feeder Fund agrees to indemnify and hold
harmless the Placement Agent and each person, if any, who
controls the Placement Agent within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange
Act, or is under common control with, or is controlled by, the
Placement Agent, from and against any and all losses, claims,
damages and liabilities (or actions in respect thereof)
("LOSSES") (i) relating to, arising out of or in connection with
the placement and sale of the Common Shares and Feeder Shares
contemplated by this Agreement or (ii) caused by any untrue
statement or alleged untrue statement of a material fact
contained in any Offering Materials (as defined below), or
caused by any omission or alleged omission in the Offering
26
Materials of a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, except, in the case of clause (ii) above,
insofar as such Losses are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon
the Placement Agent's Information or the calculations made by
the Placement Agent in the Additional Materials (as defined
below). With respect to clause (i) above, the Issuer will not,
however, be responsible for any Losses that are finally
judicially determined to have resulted from the gross
negligence, willful misconduct or bad faith of the Placement
Agent. The Issuer and each Feeder Fund also agrees that none of
the Placement Agent or any controlling or affiliated person
shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to the Issuer or any Feeder Fund
for or in connection with the transactions contemplated by this
Agreement except for any such liability for Losses with respect
to clause (i) above incurred by the Issuer or any Feeder Fund
that are finally judicially determined to have resulted from the
gross negligence, willful misconduct or bad faith of the
Placement Agent or controlling person or affiliated person.
"Offering Materials" means the Common Share PPM and any document
incorporated by reference therein or any amendment or supplement
thereto, and any filings with the SEC by the Issuer made prior
to the Closing Date, any additional materials distributed by the
Placement Agent to prospective purchasers of the Common Shares
and any of the Feeder Prospectuses or any amendment or
supplement thereto. Any such additional materials referred to
in the last clause of the preceding sentence shall be limited
to: (i) materials reviewed and approved by the Investment
Manager and (ii) materials provided by the Investment Manager to
the Issuer or the Placement Agent (the "ADDITIONAL MATERIALS").
(b) The Placement Agent agrees to indemnify and hold
harmless the Issuer and each Feeder Fund, its authorized
representatives and each person, if any, who controls the Issuer
and each Feeder Fund within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act from and
against any and all Losses, (i) relating to, arising out of or
in connection with the placement and sale of the Common Shares
and Feeder Shares contemplated by this Agreement or (ii) caused
by any untrue statement or alleged untrue statement of a
material fact contained in any Offering Materials with respect
to the Placement Agent's Information, the Delaware Feeder's
Placement Agent's Information or the Cayman Feeder's Placement
Agent's Information, as the case may be, or caused by any
omission or alleged omission in the Offering Materials of a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, with respect to the Placement Agent's Information,
the Delaware Feeder's Placement Agent's Information or the
Cayman Feeder's Placement Agent's Information, as the case
maybe. With respect to clause (i) above, the Placement Agent
will not, however, be responsible for any Losses that are
finally judicially determined to have resulted from the gross
negligence, willful misconduct or bad faith of the Issuer.
27
(c) In the event any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either of
paragraph (a) or (b) above, such person (the "INDEMNIFIED
PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the Indemnifying Party, upon request of the Indemnified
Party, shall retain counsel reasonably satisfactory to the
Indemnified Party to represent the Indemnified Party and any
others the Indemnifying Party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any Indemnified
Party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the Indemnifying
Party and the Indemnified Party and representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood
that the Indemnifying Party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such Indemnified
Parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing
by Xxxxxx Xxxxxxx in the case of parties indemnified pursuant to
paragraph (a) above and by the Issuer or the applicable Feeder
Fund, as the case may be, in the case of parties indemnified
pursuant to paragraph (b) above. The Indemnifying Party shall
not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the Indemnifying
Party agrees to indemnify the Indemnified Party from and against
any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, provided that written
notice of a proposed settlement is provided to the Indemnifying
Party no less than ten business days prior to the date of such
proposed settlement, consent of the Indemnifying Party to such
settlement shall not be required by an Indemnified Party if as
of the date of any such notice to the Indemnifying Party, the
Indemnifying Party has not reimbursed the Indemnified Party for
fees and expenses of counsel as contemplated herein within 30
days of request for such reimbursement by the Indemnified Party.
No Indemnifying Party shall, without the prior written consent
of the Indemnified Party, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified
Party is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Party, unless such
settlement includes an unconditional release of such Indemnified
Party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 9 is unavailable to any
Indemnified Party or insufficient in respect of any Losses, then
each Indemnifying Party under such paragraph, in lieu of
indemnifying such Indemnified Party thereunder, shall
contribute to the amount
28
paid or payable by such Indemnified Party as a result of such
Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Issuer on the one hand and the
Placement Agent on the other hand from the offering of the
Common Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of
the Issuer on the one hand and the Placement
Agent on the other hand in connection with the statements or
omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits
received by the Issuer on the one hand and the Placement Agent
on the other hand in connection with the offering of the Common
Shares shall be deemed to be in the same respective proportions
as the net proceeds from the offering of the Common Shares
(before deducting expenses) received directly by the Issuer on
the one hand and the total discounts, commissions and placement
agent fees received by the Placement Agent in respect thereof on
the other hand bear to the aggregate offering price of the
Common Shares. The relative fault of the Issuer on the one hand
and of the Placement Agent on the other hand shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission of a material fact relates to information
supplied by the Issuer on the one hand or by the Placement Agent
on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
(e) The Issuer and the Placement Agent agree that it would
not be just or equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation (even if the
Placement Agent were treated as one entity for such purpose) or
by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph
(d) above. The amount paid or payable by an Indemnified Party
as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9, no
Placement Agent shall be required to contribute any amount in
excess of the amount by which the Placement Agent's Fee exceeds
the amount of any damages that the Placement Agent has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution provisions contained in this Section 9
and the representations and warranties of the Issuer, each of the Feeder Funds
and the Investment Manager contained in this Agreement shall remain operative
and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of the Placement Agent or
any person controlling the Placement Agent or under common control with or
controlled by the Placement Agent or by or on behalf of the Issuer, its
authorized
29
representatives or any person controlling the Issuer or the
Investment Manager or (iii) acceptance of any payment for any of the Common
Shares. The remedies provided for in this Section 9 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
Indemnified Party at law or in equity.
10. Termination.
The Placement Agent, in its absolute discretion, may terminate this
Agreement at any time on or prior to the Closing Date by notice to the Issuer,
the Delaware Feeder Fund, the Cayman Feeder Fund and the Investment Manager, if
(a) after the execution and delivery of this Agreement and prior to the Closing
Date, (i) trading generally shall have been suspended or materially limited on
or by, as the case may be, any of the New York Stock Exchange, the American
Stock Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board of Options Exchange or the Chicago Board of Trade, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by the relevant U.S. federal or New York state authorities, or (iii) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Placement Agent, is material and adverse, and (b) in the case of any of the
events specified in clauses (a)(i) through (iii), such event singly or together
with any other such event makes it, in the judgment of the Placement Agent,
impracticable to market any of the Common Shares or Feeder Shares on the terms
and in the manner contemplated in this Agreement, the Common Share PPM and the
Feeder Prospectuses.
If this Agreement shall be terminated by the Placement Agent because of
any failure or refusal on the part of the Issuer to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the Issuer
shall be unable to perform its obligations under this Agreement (other than as a
result of a default by the Placement Agent hereunder), the Issuer shall be
obligated to reimburse the Placement Agent as has so terminated this Agreement
with respect to itself for all out-of-pocket expenses (including the fees and
disbursements of its counsel) reasonably incurred by the Placement Agent in
connection with this Agreement or the offering contemplated hereunder.
11. Submission to Jurisdiction, Waiver of Immunity, Venue.
(a) Each of the Issuer, the Feeder Funds, Investment Manager
and Placement Agent irrevocably submits, to the extent permitted
by applicable law, to the nonexclusive jurisdiction of any New
York State or United States Federal Court sitting in the City of
New York in any suit, action or proceeding arising out of or
relating to this Agreement. Each of the Issuer, the Feeder
Funds, Investment Manager and Placement Agent irrevocably
waives, to the fullest extent permitted by law, any objection
that it may have to the laying of the venue of any such suit,
action or proceeding brought in such a court and any claim that
any such suit, action or proceeding brought in such a court has
been brought in an inconvenient forum. Each of the Issuer, the
Feeder Funds and Investment Manager hereby irrevocably appoints
the Investment Manager (the "PROCESS AGENT"), as its agent to
receive, on behalf of it and its property, service of any
summons and complaint and any other process that may be served
in any such action or proceeding. Such
30
service may be made, to the extent permitted by applicable law,
by delivering by hand or certified or overnight mail a copy of
such process to the Issuer, the Feeder Funds or Investment
Manager, as the case may be, in care of the Process Agent at
such Process Agent's above address or such other address as the
Issuer, the Feeder Funds or Investment Manager shall notify the
Placement Agent, in writing; provided, however, that service
shall also be mailed to the Issuer, the Feeder Funds or
Investment Manager, as the case may be, and each of the Issuer
and Investment Manager hereby irrevocably authorizes and directs
the Process Agent to accept such service on its behalf, with
delivery of a copy thereof to the Issuer, the Feeder Funds or
the Investment Manager in the same manner and to the same
address as notices are required to be delivered to the Issuer or
Investment Manager under Section 14 hereof. Each of the Issuer,
the Feeder Funds and Investment Manager agrees that such service
shall be deemed in every respect effective service of process
upon it in any such suit, action or proceeding and shall, to the
fullest extent permitted by law, be taken and held to be valid
personal service upon and personal delivery to it. Nothing in
this paragraph shall affect or limit any right to serve process
in any manner permitted by law, to bring proceedings in the
courts of any jurisdiction or to enforce in any lawful manner a
judgment obtained in one jurisdiction in any other jurisdiction.
To the fullest extent permitted by applicable law, the Issuer,
the Feeder Funds and the Investment Manager agree that a final
judgment obtained in any such court described above in any such
action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on such judgment or in any other
manner provided by law.
(b) To the extent that any of the Issuer, the Feeder Funds,
the Investment Manager or the Placement Agent has or hereafter
may acquire any immunity from jurisdiction of any such court
referred to above, or from any legal process (whether through
service or notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to
itself or its property, it hereby irrevocably waives, to the
extent permitted by applicable law, such immunity in respect
of its obligations under this Agreement.
(c) The Issuer, the Feeder Funds, Investment Manager and the
Placement Agent hereby irrevocably waive, to the fullest
extent permitted by applicable law, any objection, including,
without limitation, any objection to the laying of venue or
based on the grounds of forum non conveniens, that it may now
or hereafter have to the bringing of any such action or
proceeding in such respective courts referred above.
12. Status of the Placement Agent.
In soliciting offers to purchase the Common Shares from the Issuer or
Feeder Shares from the Feeder Funds pursuant to this Agreement and in assuming
its other obligations in connection therewith, the Placement Agent is acting
solely as agent for the Issuer or the Feeder Funds, as the case may be, and not
as principal, it is understood that the Placement Agent has and will be acting
as the Issuer's or the Feeder Funds' agent in the placing of the respective
31
Common Shares or Feeder Shares and that the Placement Agent's responsibility
with respect to the Common Shares and Feeder Shares is limited to a "reasonable
efforts" basis in placing such Common Shares and Feeder Shares with no
understanding, express or implied, on the Placement Agent's part of a commitment
to purchase or place such Common Shares and Feeder Shares. The Placement Agent
shall have the right, in its sole discretion, to reject in whole or in part any
offer to purchase Common Shares or Feeder Shares or to allot to any purchaser
less than the amount of Common Shares or Feeder Shares offered to be purchased
by such purchaser, and the Placement Agent's decision in respect thereof shall
be binding on the Issuer and the Feeder Funds. The Issuer and the Feeder Funds
will sell the Common Shares and Feeder Shares directly to each purchaser through
the Placement Agent as agent, and the Placement Agent will have no ownership
interest in or title to the Common Shares or Feeder Shares prior to their
purchase by purchasers; provided, however, that the Placement Agent shall have
the right to purchase Common Shares and Feeder Shares as principal for its own
account.
The Placement Agent will make reasonable efforts to assist the Issuer
and each Feeder Fund in obtaining performance by each purchaser whose offer to
purchase Common Shares or Feeder Shares from the Issuer or Feeder Funds has been
solicited by the Placement Agent and accepted by the Issuer and the Feeder
Funds, but the Placement Agent shall have no liability to the Issuer or any
Feeder Fund if any such purchase is not consummated for any reason. If the
Issuer shall fail to deliver Common Shares or any Feeder Fund shall fail to
deliver Feeder Shares to a purchaser whose offer it has accepted, the Issuer or
Feeder Fund (i) shall hold the Placement Agent harmless against any loss, claim,
damage or liability arising from or as a result of such failure by the Issuer,
the Feeder Funds or the Investment Manager and (ii) shall pay to the Placement
Agent any fee to which they would be entitled hereunder in connection with such
sale as if such sale had been consummated.
Nothing contained in this Agreement (i) shall prevent the Placement
Agent from entering into any agency agreements, underwriting agreements or other
similar agreements governing the offer and sale of securities with any issuer or
issuers of securities or (ii) shall be construed in any way as precluding or
restricting other rights of the Placement Agent to sell or offer for sale any
securities issued by any person, including securities similar to, or competing
with, any of the Common Shares or Feeder Shares.
13. Survival.
The respective agreements, representations, warranties, indemnities and
other statements made by or on behalf of the Issuer, the Delaware Feeder Fund,
the Cayman Feeder Fund, the Investment Manager and their officers, directors or
other representatives and the Placement Agent, respectively, pursuant to this
Agreement, shall remain in full force and effect (in the case of the Issuer,
regardless of' any investigation or any statements as to the results thereof
made by or on behalf of the Placement Agent or any officer, director, employee
or controlling person of the Placement Agent) and will survive delivery of and
payment for the Common Shares. The provisions of Sections 7 and 9 shall survive
the termination of this Agreement.
32
14. Notices.
All communications hereunder shall be in writing and, if sent to the
Placement Agent, shall be sufficient in all respects if delivered, sent by
registered mail, telecopied or telegraphed and confirmed to Xxxxxx Xxxxxxx & Co.
Incorporated at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000),
attention: Managing Director, Fixed Income Structured Credit Transactions; or,
if sent to MSIL, shall be sufficient in all respects if delivered, sent by
registered mail, telecopied or telegraphed and confirmed to Xxxxxx Xxxxxxx & Co.
International Limited at 00 Xxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxx Xx0 0XX, Xxxxxx
Xxxxxxx (fax: 000-00-00-0000-0000), attention: Managing Director, Fixed Income
Structured Credit Transactions; or, if sent to the Issuer, the Delaware Feeder
Fund or the Cayman Feeder Fund shall be sufficient in all respects if delivered,
sent by registered mail, telecopied or telegraphed and confirmed to York
Enhanced Strategies Fund, LLC, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx X. Xxxxxx; or, if sent to the Investment Manager, shall
be sufficient in all respects if delivered, sent by registered mail, telecopied
or telegraphed and confirmed to York Enhanced Strategies Management, LLC, 000
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxx.
15. Miscellaneous.
(a) If this Agreement is executed by or on behalf of any
party hereto by a person acting under a power of attorney given
him by such party, such person hereby states that at the time of
execution hereof he has no notice of revocation of the power
of attorney by which he has executed this Agreement as such
attorney.
(b) 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.
(c) This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their successors and, with
respect to Section 9 hereof, the officers, directors and
controlling persons thereof, and no other person will have any
right or obligation hereunder.
(d) The headings of the Sections of this Agreement are
inserted for convenience only and shall not be deemed a part
hereof.
(e) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICT OF LAWS.
16. Limited Recourse.
The obligations of the Issuer, the Delaware Feeder Fund and the Cayman
Feeder Fund under this Agreement are limited in recourse to the respective
assets of the Issuer, the Delaware Feeder Fund and the Cayman Feeder Fund. To
the extent the assets of the Issuer, the Delaware Feeder Fund and the Cayman
Feeder Fund are not sufficient to meet the obligations of the respective Issuer,
the Delaware Feeder Fund and the Cayman Feeder Fund in full, none of the
33
Issuer, the Delaware Feeder Fund or the Cayman Feeder Fund shall have further
obligations hereunder and any outstanding obligations shall be extinguished.
34
Please confirm your agreement to the foregoing by signing in the space
provided below for that purpose and returning to us a copy hereof, whereupon
this Agreement shall constitute a binding agreement among the parties hereto.
Very truly yours,
YORK ENHANCED STRATEGIES FUND, LLC
By: ________________________________
Name:
Title:
YORK ENHANCED STRATEGIES
MANAGEMENT, LLC
By: ________________________________
Name:
Title:
YORK ENHANCED STRATEGIES FEEDER
FUND
By: ________________________________
Name:
Title:
YORK ENHANCED STRATEGIES (CAYMAN)
FEEDER FUND LTD
By: ________________________________
Name:
Title:
Accepted at New York, New York,
as of the date first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
By: _____________________
Name:
Title:
Accepted at London, United Kingdom,
as of the date first above written.
XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED
By: _____________________
Name:
Title:
Accepted at London, United Kingdom,
as of the date first above written.
XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED
By: _____________________
Name:
Title:
APPENDIX A
PWM SPECIFIC PROVISIONS
Notwithstanding anything to the contrary in this Agreement, the rights,
obligations and agreements in respect of PWM as contained in this Agreement
shall be modified as follows:
1. the rights, obligations and agreements of PWM shall be only in respect
of the Common Shares of the Issuer and the shares of the Feeder Funds;
2. any reference to the appointment of the Placement Agent as placement
agent shall be deemed to refer to the granting to PWM of the right to
distribute the Common Shares of the Issuer and the shares of the Feeder
Funds;
3. any reference to the entering into of a placement agency agreement with
the Placement Agent shall be deemed to refer to the entering into of a
distribution agreement with PWM;
4. any reference to the offering and/or selling of the Common Shares of
the Issuer and the shares of the Feeder Funds by the Placement Agent
shall be deemed to refer to the promotion and marketing of the Common
Shares of the Issuer and the shares of the Feeder Funds by PWM;
5. PWM shall be under no obligation to find eligible investors or to
promote and market the Common Shares of the Issuer and the shares of
the Feeder Funds;
6. PWM may, without notice to the Issuer or the Investment Manager, assign
or delegate its rights and obligations to its affiliates or independent
third parties, or otherwise retain affiliates or independent third
parties to act as sub-distributors, in connection with the promotion
and marketing of the Common Shares of the Issuer and the shares of the
Feeder Funds and otherwise to assist PWM in performing its obligations
under this Agreement to the extent PWM deems appropriate;
7. In distributing the Common Shares of the Issuer and the shares of the
Feeder Funds, PWM will be an independent contractor (rather than
employee, agent or representative) of the Issuer and the Investment
Manager, and PWM will not have the right, power or authority to enter
into any contract or to create any obligation on behalf of the Issuer
or the Investment Manager or otherwise bind the Issuer or the
Investment Manager in any way. Nothing in this Agreement will create a
partnership, joint venture, agency, association, syndicate,
unincorporated business or any other similar relationship between the
parties. Nothing in this Agreement will be construed to imply that PWM
is a partner, shareholder, manager, managing member, member or agent of
the Issuer or the Investment Manager.
