FUNDS REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, LISTED IN APPENDIX A1 (each the "Fund"2) MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (the "Selling Agent") PLACEMENT AGENCY AGREEMENT
FUNDS
REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, LISTED IN
APPENDIX A1
(each
the "Fund"2)
XXXXXXX
LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
(the
"Selling Agent")
XXXXXXX
LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
4 World
Financial Center
000 Xxxxx
Xxxxxx, 0xx Floor
New York,
NY 10080
Attention:
Xxxxxx X. Xxxxx
Ladies
and Gentlemen:
Subject
to the terms and conditions of this Agreement (in particular, Section 4 hereof)
and the Selling Agent's good faith judgment of prevailing market conditions and
the current marketability of the Fund, the Selling Agent hereby agrees to use
reasonable efforts to solicit, on behalf of and as agent for the Fund,
investments in the limited liability company interests (the "Interests") of the
Fund, a limited liability company registered under the Investment Company Act of
1940, as amended (the "1940 Act"). Each of the managers or investment
advisers, as applicable, listed in Appendix A, as may be amended from time to
time (the "Manager"3), serves as the manager or investment adviser
to the applicable Fund listed on the Appendix A and provides management or
investment advisory services, as applicable, to such Fund. This
Agreement is made separately among: (i) each Fund listed in Appendix A; (ii) the
applicable Fund's respective Manager listed in Appendix A (with respect to
Sections 2, 4(a), 7, 8 and 9 only); and (iii) the Selling Agent, severally and
not jointly with respect to the other Funds and Managers listed on Appendix
A.
_________________________
1 As may be amended from
time to time.
2 Except where otherwise
indicated by reference to a particular Fund, all defined terms used herein in
the context of an individual Fund apply equally with respect to each Fund, as
applicable. Any reference to the "Fund" shall be deemed to mean each
Fund listed in Appendix A (as may be amended from time to time), as
applicable.
3 Except where otherwise
indicated by reference to a particular Manager, all defined terms used herein in
the context of an individual Manager, apply equally with respect to each
Manager, as applicable. Any reference to the "Manager" shall be
deemed to mean each Manager listed in Appendix A (as may be amended from time to
time), as applicable.
The
Selling Agent's sole obligation and responsibility hereunder or in connection
with the Fund is to use reasonable efforts, subject to the terms of this
Agreement and the Selling Agent's good faith judgment, to solicit investors in
the Interests in accordance with the provisions set forth herein.
Section
1. Representations and
Warranties of the Fund. The Fund represents and warrants to
the Selling Agent as of the date hereof and as of each time (a "Closing Time")
that Interests are sold hereunder, as follows:
(a) The
Fund has been duly formed and is validly existing under the laws of its
jurisdiction of formation and has taken all necessary actions to attain
good-standing status and at each Closing Time will be in good standing under the
laws of its jurisdiction of formation, with power and authority to conduct its
business as described in the Fund's Confidential Offering Memorandum (the
"Offering Memorandum") and to offer and sell the Interests as contemplated by
this Agreement; the Fund is duly qualified to transact business, is in good
standing and at each Closing Time will be in good standing in each jurisdiction
in which the conduct of its business requires such qualification, except where
the failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, of the Fund, or the earnings, business
affairs or business prospects of the Fund.
(b) All
of the issued and outstanding Interests of the Fund have been duly authorized
and validly issued and are limited liability interests; the Interests to be
issued as contemplated by this Agreement have been authorized by requisite
action on the part of the Fund and, when issued and delivered against payment in
accordance with the provisions of the relevant subscription documents, will be
validly issued, limited liability interests. The issuance of the Interests by
the Fund is not subject to preemptive rights and the Fund does not have any
outstanding options to purchase or any rights or warrants to subscribe for, or
any securities or obligations convertible into, any Interests other than as
disclosed to the Selling Agent by the Fund in writing or as contained in the
Offering Memorandum.
(c) The
Fund is not in material violation of its organizational documents or in material
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, fiscal agency agreement, note, lease or other instrument to which it
is a party or by which it may be bound or to which any of its assets is subject,
except as set forth in Appendix B, as it may be amended from time to time; and
the execution, delivery and performance by the Fund of, and compliance with,
this Agreement, and the Fund's Management Agreement, Limited Liability Company
Agreement, Administration Agreement or other related agreements (collectively,
the "Operative Agreements") to which it is a party and the consummation by the
Fund of the transactions contemplated herein and therein will not conflict with
or result in a material breach of any of the terms or provisions of, or
constitute, with or without the giving of a notice or lapse of time or both, a
material default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets of the Fund pursuant to, or give any other
party a right to terminate any of its obligations under, or result in the
acceleration of any obligation under, any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Fund is a
party or by which it may be bound or to which any of the assets of the Fund is
subject, nor will such action result in any violation of or conflict with the
terms or provisions of the organizational documents of the Fund or, to the best
knowledge of the Fund, any law, order, judgment, decree, rule or regulation
applicable to the Fund; and no consent, approval, authorization or order of, or
any filing or declaration with, any court or governmental authority or agency,
national securities exchange or securities association is required for the
consummation by the Fund of the transactions contemplated by this Agreement
(except such filings as may be required under state securities or Blue Sky laws
or by Regulation D under the Securities Act of 1933, as amended (the "Securities
Act"), which will be timely filed) or the Fund's Operative
Agreements.
(d) Since
the date of the Fund's Offering Memorandum, there has been no material adverse
change, except as otherwise contemplated therein, in the condition, financial or
otherwise, business affairs or business prospects of the Fund and, except as
disclosed in the Fund's Offering Memorandum and any supplements thereto, there
is no action, suit or proceeding before or by any court or governmental agency
or body, U.S. or non-U.S., now pending, or, to the knowledge of the Fund,
threatened against or affecting the Fund or any of its shareholders, members,
principal stockholders or officers or directors, as the case may be, which
adverse change, action, suit or proceeding will impair or adversely affect in
any material respect the ability of the Fund to conduct its business as
described in its Offering Memorandum or sell its Interests or perform its
obligations under any Operative Agreement.
(e) This
Agreement and the Fund's Operative Agreements have been duly authorized by all
requisite action on the part of the Fund, and have been executed and delivered
by the Fund. Assuming due authorization, execution and delivery by
the other parties thereto with respect to the Fund's Operative Agreements, each
such Operative Agreement constitutes a valid and legally binding agreement of
the Fund, enforceable against the Fund in accordance with its terms, except as
the same may be subject to the effects of (A) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws now or hereafter
in effect relating to or affecting creditors' rights generally, (B) general
principles of equity (regardless of whether considered in a proceeding at law or
in equity) and (C) an implied covenant of good faith and fair
dealing.
(f) Assuming
the accuracy of the representations made by each investor in Interests in its
subscription or purchase agreement (none of which the Fund or the Manager had
any reason to believe are false), the Fund is eligible to claim the exemption
provided by Regulation 4.5 promulgated by the U.S. Commodity Futures Trading
Commission (the "CFTC") to the extent that compliance with Regulation 4.5 is
required by the Fund and has complied and will comply therewith.
(g) Any
offering of Interests other than by the Selling Agent or an affiliate of the
Selling Agent made or to be made within the United States was or will be made,
as applicable, in compliance with U.S. federal and state securities and
commodities laws, and any offering of Interests other than by the Selling Agent
or an affiliate of the Selling Agent made or to be made outside the U.S. was or
will be made, as applicable, in compliance with local laws.
(h) At
each date of issue as well as at each Closing Time, the Fund's Offering
Memorandum, as well as all of the sales material relating to the Interests
approved in writing by the Manager to be used as such (collectively and as the
same may be amended or supplemented, the "Offering Materials") did not and will
not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(i) Any
certificate signed by any executive officer of the Fund and delivered to the
Selling Agent or to counsel for the Selling Agent shall be deemed a
representation and warranty by the Fund to the Selling Agent as to the matters
covered thereby.
Section
2. Representations and
Warranties of the Manager. The Manager represents and warrants
to the Selling Agent as of the date hereof and as of each Closing Time as
follows:
(a) The
Manager has been duly formed, validly existing and, where applicable, in good
standing under the laws of the jurisdiction of its formation with power and
authority, to conduct its business as described in its organizational
documents. Subject as aforesaid, the Manager has been duly licensed
or qualified to transact business and is in good standing in each jurisdiction
in which such qualification is required, except where the failure to so qualify
would not have a material adverse effect on the ability of the Manager to
perform its obligations as described in the Offering Materials.
(b) Each
of this Agreement and the Operative Agreements to which it is a party (the
"Manager Operative Agreements") has been duly authorized, executed and delivered
by or on behalf of the Manager and constitutes a valid and legally binding
obligation of the Manager enforceable against the Manager in accordance with its
terms, except as the same may be subject to the effects of (A) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws now or hereafter in effect relating to or affecting creditors' rights
generally, (B) general principles of equity (regardless of whether considered in
a proceeding at law or in equity) and (C) an implied covenant of good faith and
fair dealing; and the execution, delivery and performance by the Manager of and
compliance with this Agreement and the execution and delivery and performance by
the Manager of and compliance with each the Manager Operative Agreement, and the
consummation by the Manager of the transactions contemplated hereunder or
thereunder, will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute, with or without the giving of notice or lapse of
time or both, a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the property or assets of the Manager
pursuant to, any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Manager is a party or by which it may be
bound or to which any of the property or assets of the Manager is subject, nor
will such action result in any violation of or conflict with the terms or
provisions of the other organizational documents of the Manager, any law, order,
judgment, decree, rule or regulation applicable to the Manager; and no consent,
approval, authorization or order of, or any filing or declaration with, any
court or governmental authority or agency, national securities exchange,
securities or futures association is required for the consummation by the
Manager of the transactions contemplated by this Agreement or each the Manager
Operative Agreement, except such filings as may be required under state
securities or Blue Sky laws or by Regulation D under the Securities Act, which
will be timely filed.
(c) The
Manager has the financial resources available necessary for the performance of
its obligations as contemplated herein and in the Fund's Offering
Memorandum.
(d) The
Manager is not in default under any material agreement, indenture or instrument
or in breach or violation of any judgment, decree, order, rule or regulation
applicable to it of any court or governmental or self-regulatory agency or body
with jurisdiction over it, the effect of which might impair or adversely affect
in any material respect the ability of the Manager to function as investment
manager or perform its obligations under any the Manager Operative Agreement or
to perform its obligations as contemplated in the Fund's Offering
Memorandum.
(e) Since
the date of the Fund's Offering Memorandum, there has been no material adverse
change, except as otherwise contemplated therein, in the condition, financial or
otherwise, business affairs or business prospects of the Manager that would
materially impact the nature or quality of the services it is obligated to
provide to the Fund under any of the Manager Operative Agreement as contemplated
in the Fund's Offering Memorandum and, except as disclosed in the Fund's
Offering Memorandum, there is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Manager, threatened against or affecting the Manager or any
of its members or officers, which adverse change, action, suit or proceeding
would impair or adversely affect in any material respect the ability of the
Manager to function as an investment manager or perform its obligations under
any the Manager Operative Agreement as contemplated in the Fund's Offering
Memorandum.
(f) Unless
exempted or excluded from registration, the Manager is registered with the CFTC
as a commodity pool operator and commodity trading advisor and is a member of
the U.S. National Futures Association ("NFA") and each of its principals and
associated persons (as defined in the U.S. Commodity Exchange Act and
regulations thereunder) is registered with the CFTC as such.
(g) The
Manager is registered with the U.S. Securities and Exchange Commission (the
"Commission") as an investment adviser and has all required state securities and
commodities registrations to carry out its obligations under this Agreement and
the Manager Operative Agreements.
(h) Each
partner, officer or employee of the Manager who is not currently and has not
been registered as a principal (as defined in the U.S. Commodity Exchange Act
and regulations thereunder) of the Manager has not and will not engage in any
activities which would require such individual to register as a principal until
such time as such individual is registered as a principal of the
Manager.
(i) Each
partner, officer or employee of the Manager who has not been and is not
currently registered as an associated person (as defined in the U.S. Commodity
Exchange Act and regulations thereunder) of the Manager has not and will not
engage in any activities which would require such individual to register as an
associated person, until such time as such individual is registered as an
associated person of the Manager.
(j) Each
of the Manager's registered principals and associated persons (as defined in the
U.S. Commodity Exchange Act and regulations thereunder) has in the past
performed and will perform their responsibilities in connection with the
operation of the Fund in compliance in all material respects with
CFTC and NFA requirements applicable thereto.
(k) Any
certificate signed by any executive officer of the Manager and delivered to the
Selling Agent or to counsel for the Selling Agent shall be deemed a
representation and warranty by the Manager to the Selling Agent as to the
matters covered thereby.
Section
3. Representations, Warranties
and Agreements of the Selling Agent. The Selling Agent
represents and warrants to, and agrees with, the Fund:
(a) The
Selling Agent will not make any representations regarding the Manager or the
Fund in the course of marketing the Interests which is materially inconsistent
with the disclosures made in the Offering Materials. The Selling
Agent will not distribute any sales materials to prospective investors in the
course of marketing the Interests other than the Offering Materials and any
subscription and eligibility documents related to the subscription of the
Interests.
(b) The
Agreement has been duly authorized, executed and delivered by the Selling
Agent. The Selling Agent will comply with all applicable laws in
marketing the Interests, and will market the interests as a private placement
under relevant securities and related laws so as not to cause the offering of
Interests to be required to be registered with any government
body. The Agreement constitutes a valid and legally binding agreement
of the Selling Agent, enforceable against the Selling Agent in accordance with
its terms, except as the same may be subject to the effects of (A) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws now or hereafter in effect relating to or affecting creditors' rights
generally, (B) general principles of equity (regardless of whether considered in
a proceeding at law or in equity) and (C) an implied covenant of good faith and
fair dealing.
(c) The
Selling Agent will use reasonable efforts to cooperate with the Manager and the
Fund in assuring compliance with current money laundering laws and
regulations.
(d) The
Selling Agent will not disclose or otherwise use confidential or proprietary
information regarding the Manager, its affiliates, the Fund or any of their
owners, officers, directors, employees, prospective investors or investors, or
the Manager's trading methods or strategies, without the Manager's written
consent. Notwithstanding such consent, at any time as the Manager or
the Fund may request, the Selling Agent agrees not to use or further disclose
such information to others unless required to do so by law or governmental order
provided however that the Selling Agent shall give the Manager and the Fund
prior notice of its intent to use or disclose such information so that the
parties may obtain a protective order in a court of competent
jurisdiction. As used in this Section 3(d), the term "confidential
information" does not include information that: (a) becomes or has been
generally available to the public other than as a result of disclosure
by the Selling Agent; (b) was available to the Selling Agent on a
non-confidential basis prior to its disclosure; or (c) is independently
developed or becomes available to Selling Agent on a non-confidential basis from
a source other than the Fund, the Manager or their
affiliates.
(e) The
Selling Agent will maintain the confidentiality of investor information in a
manner consistent with the privacy policy adopted by the Fund and applicable to
the Selling Agent, pursuant to Title V of the Gramm Xxxxx Xxxxxx Act, as
amended.
(f) The
Selling Agent and each of its employees and agents marketing the Interests is
either not a person (1) ineligible to serve as a principal underwriter to
an investment company pursuant to Section 9 of the 1940 Act, or (2) has obtained
an appropriate exemptive order with respect to any potential
ineligibility. The Selling Agent represents and warrants that it is
duly registered as a broker/dealer pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and is a good member in good standing
with the Financial Industry Regulatory Authority ("FINRA"). The
Selling Agent maintains all appropriate registrations, whether federal or state,
or is exempt from registration under applicable law, to enable it to perform its
obligations hereunder in accordance with applicable laws and
regulations. In taking any actions pursuant to this Agreement, the
Selling Agent will not take any action constituting a general solicitation that
would result in the exemption set forth in Rule 506 of Regulation D under the
Securities Act not being available to the Fund with respect to any sale of
Interests. The Selling Agent further agrees that it will not take any
action (including, soliciting prospective investors or accepting commissions or
other remuneration) in any state where it is not registered as a broker/dealer
that would result in any exemption under the securities laws of such state not
being available to the Fund.
(g) The
Selling Agent will conduct its activities in accordance with (i) the terms
and conditions set forth in the Offering Materials, in each case as may be
amended from time to time, (ii) applicable provisions of the applicable
laws and regulations, including but not limited to, anti-money laundering laws
and regulations, the Federal Securities laws and the rules thereunder, and FINRA
rules, and (iii) the terms of this Agreement.
(h) The
Selling Agent will maintain a log of the names and addresses of prospective
investors to whom the Offering Materials are sent (including the dates sent),
and will send a report to the Fund stating the number of the prospective
investors to whom the Offering Materials have been sent promptly upon request by
the Fund.
Section
4. Offering and Sale of Interests. The
Selling Agent is hereby appointed by the Fund as a non-exclusive selling agent
for the purpose of finding acceptable subscribers for Interests.
(a) The
Selling Agent will solicit offers to purchase Interests only from prospective
investors who are "U.S. persons" within the meaning of the U.S. Internal Revenue
Code of 1986, as amended, and who meet the other eligibility requirements
established by the Fund and set forth in the Offering Materials or communicated
to the Selling Agent in writing. The Selling Agent may submit an
Offeree Qualification Form for any qualified investor, as described in this
Section 4, with which the Selling Agent and/or a Xxxxxxx Xxxxx Financial Advisor
has had substantive business dealings for at least six months and believes that
the Selling Agent and/or a Xxxxxxx Xxxxx Financial Advisor should have
sufficient information to be able to assess such qualified investor's financial
information, knowledge and sophistication. The Selling Agent may
distribute to the qualified investors the Offering Materials, including the
Fund's Offering Memorandum. The Manager will provide (or if provided
by the Selling Agent, must approve) all Offering Materials to be given by the
Selling Agent to qualified investors.
(b) The
offers and sales of Interests are to be effected pursuant to the exemption from
the registration requirements of the Securities Act, pursuant to
Section 4(2) thereof and Regulation D under the Securities
Act. Both the Selling Agent and the Fund have established the
following procedures in connection with the offer and sale of Interests and
agree that the Selling Agent will make offers or sales of any Interests in
compliance with such procedures:
(i) Offers
and sales of Interests will be made only in compliance with Regulation D under
the Securities Act, the FINRA rules and state securities laws and only to
investors that qualify as "accredited investors," as defined in Rule 501(a)
under the Securities Act, and as "qualified clients," as defined in Rule 205-3
under the Advisers Act.
(ii) No
sale of Interests to any one investor will be for less than the minimum
denominations as may be specified in the Offering Memorandum or as otherwise
approved by the Board of Managers of the Fund (the "Board").
(iii) No
offer or sale of any Interest shall be made in any state or jurisdiction, or to
any prospective investor located in any state or jurisdiction, where such
Interests have not been registered or qualified for offer and sale under
applicable state securities laws unless such Interests are exempt from the
registration or qualification requirements of such laws.
(c) It
is understood that the Selling Agent has no commitment with regard to the sale
of the Interests other than to use its reasonable efforts and its good faith
judgment in soliciting investments in the Interests.
(d) The
Selling Agent shall be under no obligation to continue to market the Interests
if, in its sole judgment, it believes that doing so would be impracticable,
uneconomical or inappropriate, in view of such considerations as it may feel
relevant.
(e) The
Fund shall have the right, in its sole discretion, to approve or reject any
prospective investor to whom the Selling Agent proposes to distribute the
Offering Materials, and the Fund shall have the right, in its sole discretion to
approve or reject each such investor before any Interests are sold.
(f) The
Selling Agent shall take all such reasonable and appropriate actions such that
the representations and warranties made herein by the Selling Agent remain true
and accurate in all material respects, and shall promptly inform the Fund and
the Manager in the event that the Selling Agent has any reason to believe that
any such representation or warranty is no longer true and accurate in all
material respects.
Section
5. Covenants of the
Fund.
The Fund
hereby covenants as follows:
(a) The
Fund will deliver to the Selling Agent, or the Selling Agent's designated
distribution center, as promptly as practicable such number of copies of the
Offering Materials (as the same may be amended or supplemented) as the Selling
Agent may reasonably request in writing.
(b) If
any event relating to or affecting the Fund occurs as a result of which it has
become necessary to amend or supplement the Offering Materials so that they do
not contain a material misstatement or omission, the Fund will so inform the
Selling Agent and will prepare and furnish to the Selling Agent a reasonable
number of copies of an amendment or amendments of, or a supplement or
supplements to, the Offering Materials which will amend or supplement the
Offering Materials so that as so amended or supplemented the Manager has reason
to believe that such Offering Materials do not contain any material misstatement
or omission.
(c) The
Fund will use reasonable efforts to cooperate in the Selling Agent's ongoing due
diligence process with respect to the Fund, to the extent consistent with the
Fund's customary confidentiality policies.
(d) The
Fund will comply with all applicable current anti-money laundering laws and
regulations and will cooperate with the Selling Agent in its efforts to confirm
such compliance.
(e) The
Fund shall take all such reasonable and appropriate actions such that the
representations and warranties made herein by the Fund remain true and accurate
in all material respects, and shall promptly inform the Selling Agent in the
event that the Fund has any reason to believe that any such representation or
warranty is no longer true and accurate in all material respects.
Section
6. Payment of Expenses and
Fees. Except as may otherwise be agreed to in writing, each
party shall be responsible for the payment of all costs and expenses it incurs
in connection with the performance of its obligations under this
Agreement.
Section
7. Compensation. In
consideration for the services provided by the Selling Agent to the Fund
described in this Agreement, the Selling Agent shall receive from each investor
the placement fee (the "Placement Fee"), as set forth in Appendix A (as may be
amended from time to time). In addition, the Manager or its affiliate
may pay directly to the Selling Agent such amounts as shall be mutually agreed
upon from time to time by the Manager or its affiliate and the Selling
Agent.
Section
8. Conditions to
Closing. The obligations of the Selling Agent shall be subject
to the accuracy of the representations and warranties on the part of the Manager
and the Fund contained herein as of the date hereof and as of each Closing Time,
to the accuracy of the statements of executive officers of the Manager and the
Fund made in any certificates pursuant to the provisions hereof and to the
following additional conditions:
(a) The
Selling Agent shall have received a certificate of the Manager and the Fund,
signed by an executive officer of each, dated as of the initial Closing Time, to
the effect that:
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(i)
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The
representations and warranties in Sections 1 and 2 hereof, as applicable,
are true and correct on and as of the Closing Time with the same effect as
if made on the Closing Time and the Manager and the Fund, as applicable,
each has complied with all agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Time;
and
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(ii)
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Since
the date of the most recent information included in the Offering
Memorandum, there has not been a material adverse change in the Manager
and the Fund that must be reflected in the Offering Memorandum in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
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(b) All
actions taken by the parties hereto in connection with the sale of the Interests
as herein contemplated shall be reasonably satisfactory in form and substance
the parties hereto and their counsel.
(c) At
each additional Closing Time, the Selling Agent shall have been furnished with
such information and certificated documents from the Manager and the Fund as the
Selling Agent may deem to be reasonably necessary or appropriate.
If any of
the conditions specified in this Section 8 shall not have been fulfilled when
and as required by this Agreement to be fulfilled, this Agreement and all
obligations hereunder may be cancelled by either party hereto by notifying the
other party of such cancellation in writing or by telegram at any time at or
prior to the Closing Time, and any such cancellation or termination shall be
without liability of any party to the other party except as otherwise provided
in this Section 8.
Section
9. Indemnification.
(a) The
Fund and the Manager shall indemnify and hold harmless the Selling Agent or any
affiliate of the Selling Agent ("Selling Agent's Affiliate") within the meaning
of the Securities Act or the Exchange Act (collectively, the "Selling Agent's
Indemnified Parties") from and against any loss, claim, damage or liability,
joint or several, and any action in respect thereof, to which the Indemnified
Party may become subject or otherwise, insofar as such loss, claim, damage,
liability or action relates to or arises out of (i) any untrue statement of a
material fact contained in the Offering Materials, or the omission to state
therein a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or
(ii) any material breach of the representations, warranties or covenants of
the Fund and the Manager contained in this Agreement, and shall reimburse such
Selling Agent's Indemnified Party in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Fund and the Manager will not be liable in any such case to the extent that any
such loss, claim, damage, liability or action relates to or arises out of (i)
any untrue statement or omission or alleged untrue statement or omission
contained in the Offering Materials relating to the Selling Agent or to any
Selling Agent's Affiliate that was made in reliance upon and in conformity with
information furnished to the Manager or the Fund in writing by the Selling Agent
or any Selling Agent's Affiliate, in any such case expressly for use in the
Offering Materials, or (ii) the Selling Agent's or a Selling Agent's Affiliate's
own bad faith, willful misconduct or gross negligence or their reckless
disregard of duties under this Agreement. Any determination by the
Fund to indemnify the Selling Agent or any Selling Agent's Affiliate for the
foregoing liabilities shall be made in accordance with the requirements of
Section 17 of the 1940 Act, as interpreted by the Commission.
(b) Promptly
after receipt by an Indemnified Party under this Section 9 of notice of any
claim or the commencement of any action, such Indemnified Party shall notify the
Fund and the Manager or the Selling Agent, as applicable (the "Indemnifying
Party"), in writing of the claim or the commencement of that action, provided
that the failure to notify the applicable Indemnifying Party will not relieve
such Indemnifying Party from any liability which it may have to an Indemnified
Party otherwise than under this Section 9 unless such failure materially affects
the Indemnifying Party's case. If any such claim or action is brought
against any Indemnified Party, and it shall notify an Indemnifying Party
thereof, the Indemnifying Party shall be entitled to participate therein, and,
to the extent that it wishes, jointly with any other similarly notified party,
to assume the defense thereof, with counsel reasonably satisfactory to the
Indemnified Party (which consent may not be unreasonably withheld or
delayed). After notice from the Indemnifying Party to the Indemnified
Party of its election to assume the defense of such claim or action, the
Indemnifying Party shall not be liable to the Indemnified Party under this
Section 9 for any legal or other expenses subsequently incurred by the
Indemnified Party in connection with the defense thereof other than reasonable
costs of investigation in connection with the defense. The
Indemnified Party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the
expense of such Indemnified Party unless (1) the employment of counsel by the
Indemnified Party has been authorized in writing by the Indemnifying Party, (2)
a conflict or potential conflict exists (based on advice of counsel to the
Indemnified Party) between the Indemnified Party and the Indemnifying Party (in
which case the Indemnifying Party will not have the right to direct the defense
of such action on behalf of the Indemnified Party), or (3) the Indemnifying
Party has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the Indemnifying
Party. The Indemnifying Party will not be liable for any settlement
of any action or claim effected without its written consent (which consent will
not be unreasonably withheld or delayed).
(c) The
indemnity provided by this Section 9 shall not relieve the Fund, the Manager and
the Selling Agent from any liability any such party may otherwise
have.
Section
10. Representations, Warranties
and Agreements to Survive Delivery. The indemnities set forth
in this Agreement will remain in full force and effect regardless of any
termination of this Agreement. All representations, warranties,
agreements and indemnities contained in this Agreement or contained in
certificates of any party hereto submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation made by,
or on behalf of, the Selling Agent, the Fund or any person who controls any of
the foregoing, and shall survive the Initial and each Additional Closing Time in
the form restated and reaffirmed as of each such Closing Time. The
provisions of this Section 10 shall survive the termination or cancellation of
this Agreement.
Section
11. Effective Date and Term of
Agreement.
This
Agreement shall become effective for all purposes as of the date hereof and
shall remain in effect for an initial term of two years from such
date. Thereafter, this Agreement shall continue in effect from year
to year, provided that each such continuance is approved by the Board, including
the vote of a majority of the Board members who are not "interested persons," as
defined by the 1940 Act, of the Fund or the Selling Agent.
Section
12. Termination.
(a) The
Fund shall have the right to terminate this Agreement at any time by giving not
less than thirty days' written notice of such termination to the Selling
Agent. The Selling Agent shall have the right to terminate this
Agreement at any time by giving not less than thirty days' written notice of
termination to the Fund.
(b) This
Agreement shall terminate automatically in the event of its "assignment," as
such term is defined by the 1940 Act and the rules thereunder, by the Selling
Agent.
(c) Any
termination of this Agreement shall in no respect modify or qualify the Selling
Agent's right to receive compensation through the date of such termination in
respect of services provided prior to such termination or with respect to
Interests previously sold through the Selling Agent or for which firm orders
have been received by the Selling Agent and communicated in writing to the Fund
prior to the termination date.
Section
13. Amendments. This
Agreement may not be amended except by a writing executed by each of the parties
hereto.
Section
14. Notices. All
communications hereunder shall be in writing and: if sent to the Selling
Agent shall be mailed, delivered or telegraphed and confirmed to it
at: 4 World Financial Center, 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
XX 00000, Attention: Xxxxxx X. Xxxxx; and if sent to the Fund shall be mailed,
delivered or telegraphed and confirmed to it at the following
address: 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, XX 00000, Attention:
Xxxxxx Xxxx. Notices shall be effective when actually
received.
Section
15. Parties. This
Agreement shall inure to the benefit of and be binding upon the Selling Agent,
the Fund and such parties' respective successors to the extent provided
herein. This Agreement and the conditions and provisions hereof are
intended to be and are for the sole and exclusive benefit of the parties hereto
and their respective successors, permitted assigns and controlling persons and
parties indemnified hereunder, and for the benefit of no other person, firm or
corporation. No purchaser or prospective purchaser of Interests shall
be considered to be a successor or assign solely on the basis of such
purchase.
Section
16. Selling Agent's Authority to
Act. Nothing in this Agreement shall be construed to imply
that the Selling Agent is a partner, shareholder, manager, managing member or
member of: (1) the Fund; (2) the Manager; or (3) any of their
respective affiliates. The Fund and the Selling Agent acknowledge
that, absent express written consent by the parties, the Agent does not have the
right, power or authority to enter into any contract or to create any obligation
on behalf of the Fund, the Manager, or any of their respective affiliates or to
otherwise bind such entities or any of their respective affiliates in any
way. Furthermore, nothing in this Agreement shall be construed to
limit or waive the right of the Fund to: (a) require an Investor to
withdraw from the Fund or to compel the redemption of some or all of an
Investor's investment or Interests pursuant to the terms of the governing
documents of the Fund; or (b) change the terms of the offering of Interests
pursuant to the terms of the governing documents of the Fund.
Section
17. Governing
Law. This Agreement and the rights and obligations of the
parties created hereby shall be governed by the laws of the State of New York,
without regard to principles of conflicts of law provisions thereof, and with
the provisions of the 1940 Act. In the event of any conflict between
the provisions of the laws of New York and those of the 1940 Act, the 1940 Act
provisions shall control.
Section
18. Severability. In
the event that any provision of this Agreement is held to be invalid or
unenforceable in any jurisdiction, such provision shall be deemed modified to
the minimum extent necessary so that such provision, as so modified, shall no
longer be held to be invalid or unenforceable. Any such modification,
invalidity or unenforceability shall be strictly limited both to such provision
and to such jurisdiction, and in each case to no other. Furthermore,
in the event of any such modification, invalidity or unenforceability, this
Agreement shall be interpreted so as to achieve the intent expressed herein to
the greatest extent possible in the jurisdiction in question and otherwise as
set forth herein.
Section
19. Indirect
Action. The parties agree that it is of the essence of their
mutual agreement as embodied herein that none of them shall attempt to do
indirectly what they could not do directly hereunder, through the use of
affiliates, reciprocal business dealings or any other means.
Section
20. Requirements of
Law. Whenever in this Agreement it is stated that a party will
take or refrain from taking a particular action, such party may nevertheless
refrain from taking or take such action if advised by counsel that doing so is
required by law or advisable to ensure compliance with law, and shall not be
subject to any liability hereunder for doing so, although such action shall
permit termination of the Agreement by the other party hereto.
Section
21. Consent to
Jurisdiction. The parties hereto agree that any action or
proceeding arising directly, indirectly, or otherwise in connection with, out
of, related to, or from this Agreement, any breach hereof, or any transaction
covered hereby, shall be resolved, whether by arbitration or otherwise, within
the County, City, and State of New York. Accordingly, the parties
consent and submit to the jurisdiction of the federal and state courts and any
applicable arbitral body located within the County, City, and State of New
York. The parties further agree that any such action or proceeding
brought by either party to enforce any right, assert any claim, or obtain any
relief whatsoever in connection with this Agreement shall be bought by such
party exclusively in the federal or state courts, or if appropriate before any
applicable arbitral body, located within the County, City, and State of New
York.
Section
22. Use of Xxxxxxx Xxxxx
Name. The Fund may not disseminate any written reference
relating to the Selling Agent relating in any respect to the transactions
contemplated hereby without the prior written consent of the Selling
Agent.
If the
foregoing is in accordance with each party's understanding of their agreement,
each party is requested to sign and return to the Fund a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement among them in accordance with its terms.
|
Very
truly yours,
By:
/s/ Xxxxx X.
Xxxxxx
Name: Xxxxx
X. Xxxxxx
Title: President
(With
respect to Sections 2, 4(a), 7, 8 and 9 only):
BANK
OF AMERICA CAPITAL ADVISORS LLC
By:
/s/ Xxxxxx X.
Xxxx
Name:
Xxxxxx X. Xxxx
Title: Senior
Vice President
|
|
Confirmed
and accepted as of October 23, 2009:
XXXXXXX
XXXXX, XXXXXX,
XXXXXX
& XXXXX
INCORPORATED
By: /s/ Xxxxxx X.
Xxxxx
Name: Xxxxxx
X. Xxxxx
Title: Vice
President
APPENDIX
A
THE
FUNDS, THE MANAGERS AND PLACEMENT FEES
As of
October 23, 2009:
|
No.
|
Fund
Name
|
Manager/Adviser
|
Channel
|
Fees
|
|
3.
|
Bank
of America Capital Advisors LLC
|
Bank
of America, US Trust only
(Reg
R)
|
(i)
2% of the aggregate commitment amount if such investor’s aggregate
Commitment is less than $250,000; or
(ii)
1% of the aggregate commitment amount if such investor’s aggregate
Commitment is equal to or greater than $250,000.
Fees
are waived for:
(i)
any account for which the Placement Agent or one of its affiliates acts in
a fiduciary, advisory, custodial, or similar capacity; or
(ii) individuals
who are employees ofBank of America at the time oftheir
investment.
|
APPENDIX
B
