MUNDER @VANTAGE FUND
Shares of Beneficial Interest
DISTRIBUTION AGREEMENT
New York, New York
August 2, 2000
CHASE SECURITIES INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Each of Munder @Vantage Fund, a Delaware business trust (the "Trust"), and
Munder Capital Management, a Delaware general partnership (the "Investment
Adviser"), confirms its agreement with and appointment of Chase H&Q, a division
of Chase Securities Inc., to act as the principal distributor (the
"Distributor") in connection with the offering by the Trust of that number of
shares (each a "Share" and collectively the "Shares") of beneficial interest,
par value $0.001 per Share, of the Trust (the "Offering") as shall be agreed
upon by the Distributor and the Trust. The Shares will be authorized by, and
subject to the terms and conditions of, the Agreement and Declaration of Trust
and By-Laws of the Trust, as amended from time to time (collectively, the "Trust
Documents"), in the form filed as exhibits to the registration statement
referred to in the following paragraph.
The Trust has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-2 (File Nos. 333-36588 and 811-
9937) and a related preliminary prospectus and preliminary statement of
additional information for the registration of the Shares of the Trust under the
Securities Act of 1933, as amended (the "Securities Act") and the registration
of the Trust as a registered investment company under the Investment Company Act
of 1940, as amended (the "Investment Company Act"), and has filed an initial
notification of registration of the Trust as a closed-end non-diversified
management investment company on Form N-8A (the "1940 Act Notification"), and in
accordance with the rules and regulations of the Commission under the Securities
Act and the Investment Company Act (the "Rules and Regulations"), and has filed
such amendments to such registration statement on Form N-2, if any, and such
amended preliminary prospectuses and preliminary statements of additional
information as may have been required to the date hereof. If the registration
statement has not become effective as of the date hereof, any further amendments
to such registration statement, including forms of a final prospectus and final
statement of additional information necessary to permit such registration
statement to become effective, will be appropriately filed by the Trust with the
Commission. If the registration statement has become effective as of the date
hereof and any prospectus or statement of additional information constituting a
part thereof omits certain information at the time of effectiveness pursuant to
Rule 430A under the Securities Act, a
final prospectus and final statement of additional information containing such
omitted Rule 430A information will promptly be filed by the Trust with the
Commission in accordance with Rule 497(h) under the Securities Act. The term
"Registration Statement" as used herein means the registration statement, as
amended (if applicable), at the time it becomes or became effective, including
financial statements and all exhibits and all documents, if any, incorporated
therein by reference, and any information deemed to be included by Rule 430A.
The term "Prospectus" means the final prospectus and final statement of
additional information in the forms filed with the Commission pursuant to Rule
497(c), (h) or (j) under the Securities Act, as the case may be, as from time to
time amended or supplemented pursuant to the Securities Act.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) The Trust and the Investment Adviser, jointly and severally, represent
and warrant to, and agree with, the Distributor that:
(i) The Trust meets the requirements for use of Form N-2 under the
Securities Act and the Investment Company Act and the Rules and Regulations. At
the time the Registration Statement is declared effective by the Commission (the
"Effective Date"), the Registration Statement will in all material respects
contain all statements required to be stated therein and will comply in all
material respects with the requirements of the Securities Act, the Investment
Company Act and the Rules and Regulations and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. From
the Effective Date through the latest date that the Prospectus is required to be
delivered under the Securities Act, the Prospectus (and any supplement or
amendment thereto) will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to (i)
statements in or omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the Trust in
writing by the Distributor or its affiliates or agents expressly for use in the
Registration Statement or Prospectus or (ii) with respect to the representations
of the Trust, the description of the Investment Adviser contained in the
Prospectus under the heading "Management of the Fund."
(ii) The Trust has been duly organized and is validly existing as a
business trust in good standing under the laws of the State of Delaware, has
full power and authority (business trust and other) to conduct its business as
described in the Registration Statement and the Prospectus, and is duly
registered and qualified to do business as a foreign corporation and is in good
standing in each jurisdiction wherein it owns or leases real property or in
which the conduct of its business requires such registration and qualification,
except where the failure to be so qualified would not reasonably be expected to
result in a material adverse change in the condition (financial or other),
business, prospects, properties, financial position or results of operations of
the Trust, whether or not arising in the ordinary course of business (a
"Material Adverse Effect"). The Trust has no subsidiaries.
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(iii) The Trust is, or as of the Effective Date (as defined below) will be,
registered with the Commission under the Investment Company Act as a closed-end,
non-diversified management investment company; no order of suspension or
revocation of such registration has been issued or proceedings therefor
initiated or threatened by the Commission; as of the Effective Date all required
action will be taken under the Securities Act and the Investment Company Act to
make the public offering and for the issuance and sale of the Shares by the
Trust, and the provisions of the Trust Documents comply or will comply as to
form in all material respects with the requirements of the Investment Company
Act. The Trust has not received any notice from the Commission pursuant to
Section 8(e) of the Investment Company Act with respect to the 1940 Act
Notification. The Trust is, and at all times through the completion of the
transactions contemplated hereby, will be, in compliance in all material
respects with the terms and conditions of the Securities Act and the Investment
Company Act. No person is serving or acting as an officer, trustee or
investment adviser of the Trust except in accordance with the provisions of the
Investment Company Act and the Rules and Regulations and the Investment Advisers
Act of 1940, as amended (the "Advisers Act"), and the rules and regulations of
the Commission promulgated under the Advisers Act (the "Advisers Act Rules and
Regulations").
(iv) Xxxxx & Young LLP, the accountants who will serve as the independent
accountants of the Trust, are independent public accountants as required by the
Securities Act, the Investment Company Act and the Rules and Regulations.
(v) The financial statements for the Trust, together with related schedules
and notes, included or incorporated by reference in the Registration Statement
and the Prospectus (and any amendment or supplement to either of them), will as
of the Effective Date present fairly the financial position, results of
operations and changes in financial position of the Trust on the basis stated or
incorporated by reference in the Registration Statement at the respective dates
or for the respective periods to which they apply; such statements and related
schedules and notes will be prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as disclosed therein; and the other financial and statistical information
and data included in the Registration Statement and the Prospectus (and any
amendment or supplement to either of them) will be accurately presented in all
material respects and prepared on a basis consistent with such financial
statements and the books and records of the Trust.
(vi) All the outstanding shares of the Trust which are not part of the
Offering (the "Other Shares") have been and all the Shares have been or, as of
the Effective Date, will be duly authorized and are or will be validly issued,
fully paid and non-assessable and are or will be free of any preemptive or
similar rights and, when issued and delivered pursuant to the Offering, will be
validly issued, fully paid and non-assessable and free of any preemptive or
similar rights that entitle any person to acquire any Shares upon the issuance
thereof by the Trust, and will conform in all material respects to the
description thereof in the Registration Statement and Prospectus (and any
supplement or amendment to either of them); and the capitalization of the Trust
conforms to the description thereof in the
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Registration Statement and Prospectus (and any amendment or supplement to either
of them).
(vii) Except as disclosed in the Registration Statement and the Prospectus
(or any amendment or supplement to either of them), subsequent to the respective
dates as of which such information is given in the Registration Statement and
the Prospectus (or any amendment or supplement to either of them), the Trust has
not incurred any liability or obligation, direct or contingent, or entered into
any transaction, not in the ordinary course of business, that is material to the
Trust, and there has not been any change in the capitalization, or any material
increase in the short-term debt or long-term debt, of the Trust, or any material
adverse change, or any development involving or which may reasonably be expected
to involve, a Material Adverse Effect.
(viii) There are no legal or governmental proceedings pending or, to the
knowledge of the Trust, threatened or contemplated against the Trust or to which
the Trust or any of its properties is subject.
(ix) There are no agreements, contracts, indentures or other documents or
instruments of the Trust required to be described in the Registration Statement
or the Prospectus (or any supplement or amendment to either of them), or to be
filed or incorporated by reference as exhibits which are not or by the Effective
Date will not be described or filed or incorporated by reference therein as
permitted by the Securities Act, the Investment Company Act or the Rules and
Regulations.
(x) This agreement (the "Agreement") has been and each of the Investment
Management Agreement between the Trust and the Investment Adviser (the
"Investment Advisory Agreement"), the Custody and Fund Accounting Agreement
between the Trust and State Street Bank and Trust Company (the "Custody
Agreement"), the Transfer Agent Services Agreement between the Trust and PFPC
Global Fund Services (the "Transfer Agency Agreement") and the Administrative
Services Agreement between the Trust and State Street Bank and Trust Company
(the "Administration Agreement") (the Investment Advisory Agreement, Custody
Agreement, Transfer Agency Agreement and Administration Agreement are
collectively referred to herein as the "Trust Agreements") have been or will be
as of the Effective Date duly and validly authorized and duly executed and
delivered by the Trust at the time of the Offering; each of this Agreement and
the Trust Agreements complies or, as of the Effective Date will comply, in all
material respects with all applicable provisions of the Investment Company Act
and the Rules and Regulations thereunder; and, assuming due authorization,
execution and delivery by the other parties thereto, each of this Agreement and
the Trust Agreements will constitute a legal, valid, binding and enforceable
obligation of the Trust, subject to the qualification that the enforceability of
the Trust's obligations hereunder and thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, and to general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law) and subject to the qualification that the right to indemnity hereunder
and thereunder may be limited by federal or state securities laws.
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(xi) Neither the issuance and sale of the Shares, the execution, delivery
or performance of this Agreement or any of the Trust Agreements, nor the
consummation by the Trust of any of the transactions contemplated in this
Agreement and the Trust Agreements nor the consummation of the transactions
contemplated in the Registration Statement conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the Trust
Documents, or any agreement, indenture, lease or other instrument to which the
Trust is a party or by which it or any of its properties may be bound, or
violates or will violate in any material manner any statute, law, regulation or
judgment, injunction, order or decree applicable to the Trust or any of its
properties, or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Trust, other than those
contemplated in the Prospectus. The Trust is not subject to any order of any
court or of any arbitrator, governmental authority or administrative agency.
(xii) No consent, approval, authorization, notification or order of, or any
registration or filing with, any court, regulatory body, administrative or other
governmental agency or body, whether foreign or domestic, is required for the
consummation by the Trust of the transactions contemplated by this Agreement,
the Trust Agreements or the Registration Statement, except such as have been
obtained, or if the Registration Statement is not effective as of the time of
execution hereof, such approvals as may be required (and shall be obtained, as
needed) under the Securities Act, Investment Company Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and any state securities
laws.
(xiii) (A) The Trust owns or possesses all material governmental licenses,
permits, consents, orders, approvals or other authorizations (collectively,
"Permits"), whether foreign or domestic, to enable the Trust to continue to
carry on its business and to invest in securities as contemplated in the
Registration Statement and Prospectus; (B) the Trust has fulfilled and performed
all its material obligations with respect to such Permits and no event has
occurred which allows, or after notice or lapse of time would allow, revocation
or termination thereof or result in any other material impairment of the rights
of the Trust under any such permit, subject in each case to such qualification
as may be set forth in the Registration Statement; and (C) none of such Permits
contains any restriction that is materially burdensome to the Trust, except
where the failure of (A), (B) or (C) to be accurate would not, individually or
in the aggregate, have a Material Adverse Effect on the Trust.
(xiv) The conduct by the Trust of its business (as described in the
Registration Statement and Prospectus) does not require it to be the owner,
possessor or licensee of any patents, patent licenses, trademarks, service marks
or trade names which it does not own, possess or license.
(xv) The Trust is not in violation of (A) its Trust Documents or other
organizational documents of the Trust (together with the Trust Documents, the
"Organizational Documents") or (B) any law, ordinance, administrative or
governmental rule or regulation applicable to the Trust or of any decree of the
Commission, the National
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Association of Securities Dealers, Inc. (the "NASD"), any state securities
commission, any national securities exchange, any arbitrator, any court or
governmental agency, body or official having jurisdiction over the Trust, or in
default in the performance of any material obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness or
in any material agreement, indenture, lease or other instrument to which the
Trust is a party or by which it or any of its properties may be bound, except
where any such violation or default described in this clause (B) could not
reasonably be expected to have a Material Adverse Effect on the Trust.
(xvi) Neither the Trust nor any employee or agent of the Trust has made any
payment of funds of the Trust or received or retained any funds, which payment,
receipt or retention of funds is of a character required to be disclosed in the
Prospectus, except for the issuance of Other Shares of the Trust having a value
of at least $100,000 to the Investment Adviser or an affiliate of the Investment
Adviser to comply with the requirements of Section 14(a) of the Investment
Company Act. Except for such Shares and as otherwise described in the
Prospectus, there are no outstanding options, warrants or other rights calling
for the issuance of, or any commitment, plan or arrangement to issue, any Other
Shares of the Trust or any security convertible into or exchangeable or
exercisable for Other Shares of the Trust.
(xvii) The Trust has not distributed and, prior to the completion of the
distribution of the Shares, will not distribute any offering material in
connection with the Offering and sale of the Shares other than the Registration
Statement, the Prospectus or other materials, if any, permitted by the
Securities Act, the Investment Company Act, the Rules and Regulations or the
NASD's Conduct Rules.
(xviii) The Trust will use its best efforts to direct the investment of the
proceeds of the Offering described in the Registration Statement and the
Prospectus in such a manner as to comply with all the requirements under the
Internal Revenue Code of 1986, as amended (the "Code") to qualify the Trust as a
regulated investment company under Subchapter M of the Code.
(xix) Except as stated in this Agreement and in the Prospectus (and any
amendment or supplement thereto), the Trust has not taken, nor will it take,
directly or indirectly, any action designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the price of any
securities issued by the Trust to facilitate the sale or resale of the Shares,
and the Trust is not aware of any such action taken or to be taken by any
affiliates of the Trust.
(xx) All advertising and other sales literature (including "prospectus
wrappers") approved in writing by the Trust or the Investment Adviser or
prepared by the Trust or the Investment Adviser for use in connection with the
offering and sale of the Shares (collectively, "Sales Material") comply in all
material respects with the applicable requirements of the Securities Act, the
Investment Company Act, the Rules and Regulations and the rules and written
interpretations of the NASD and no such Sales Material contained
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or contains an untrue statement of a material fact or omitted or omits to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. However, it is acknowledged by each party to this Agreement that
the Distributor is responsible for obtaining all required approvals from the
NASD with respect to Sales Material used by the Trust, the Investment Adviser or
the Distributor with respect to the Offering.
The "broker kits" prepared by or approved in writing by the Trust or the
Investment Adviser for distribution to and use internally by brokers and dealers
participating in the Offering accurately and fairly present the information
contained therein in all material respects for purposes of such internal use
and, with respect solely to broker kits that are not preceded or accompanied by
a Prospectus, contain only information the substance of which is included in the
Prospectus of the Trust. Any road show slides and road show scripts prepared by
or approved in writing by the Trust or the Investment Adviser for use in
presentations to brokers and dealers participating in the offering of the Shares
accurately and fairly present the information contained therein in all material
respects for purposes of such use.
Sales Material and broker kits prepared by the Distributor will be
submitted to the Trust and the Investment Adviser for their written prior
approval. Such approval will not be unreasonably withheld.
(xxi) Each of the Trust Agreements and the Trust's obligations under this
Agreement comply, or will comply, in all material respects with all applicable
provisions of the Securities Act, the Investment Company Act, the Rules and
Regulations, the Advisers Act and the Advisers Act Rules and Regulations.
(xxii) Except as disclosed in the Registration Statement and the Prospectus
(or any amendment or supplement to either of them), no trustee of the Trust is
an "interested person" (as defined in the Investment Company Act) of the Trust
or the Investment Adviser or an "affiliated person" (as defined in the
Investment Company Act) of the Investment Adviser or the Distributor.
(xxiii) There are, and there will be, no material restrictions, limitations
or regulations with respect to the ability of the Trust to invest its assets as
described in the Prospectus other than as described therein.
(xxiv) The Trust, its Administrator, Custodian, Fund Accounting Agent or
Transfer Agent maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in accordance
with general or specific authorization by the Investment Adviser or the Board of
Trustees of the Trust and with the applicable requirements of the Investment
Company Act and the Rules and Regulations thereunder and the Code; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets and to maintain material compliance with the
books and records requirements under the Investment Company Act and the Rules
and Regulations
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thereunder; (C) access to assets is permitted only in accordance with general or
specific authorization by the Investment Adviser or the Board of Trustees of the
Trust; and (iv) the recorded accounts for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to
any differences.
(xxv) The Trust, subject to the Registration Statement having been declared
effective and the filing of the Prospectus under Rule 497 under the Securities
Act, if necessary, has taken or will take all required action under the
Securities Act, the Investment Company Act and the Rules and Regulations to make
the Offering and consummate the sale of the Shares as contemplated by this
Agreement.
(xxvi) The Trust will timely file the requisite copies of the Prospectus
with the Commission pursuant to Rule 497(c) or Rule 497(h) under the Securities
Act, whichever is applicable or, if applicable, will timely file the
certification permitted by Rule 497(j) under the Securities Act and will advise
the Distributor of the time and manner of such filing.
(xxvii) The Trust will use its best efforts to perform all of the
agreements required of it and discharge all conditions to closing as set forth
in this Agreement.
(b) The Investment Adviser represents and warrants to, and agrees with, the
Distributor as of the date hereof that:
(i) The Investment Adviser has been duly organized and is validly existing
in good standing as a general partnership under the laws of the State of
Delaware, has full power and authority to own its properties and conduct its
business as described in the Registration Statement and the Prospectus (and any
supplement or amendment to either of them), and is duly qualified to do business
as a foreign entity in each jurisdiction wherein it owns or leases real property
or in which the conduct of its business requires such qualification, except
where the failure to be so qualified does not involve a material adverse risk to
the business, prospects, properties, financial position or results of operations
of the Investment Adviser or the ability of the Investment Adviser to perform
its obligations under this Agreement or the Investment Advisory Agreement (an
"Adviser Material Adverse Effect").
(ii) The Investment Adviser is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act or the
Investment Company Act, or the rules and regulations under such Acts, from
acting as an investment adviser for the Trust as contemplated in the
Registration Statement, Prospectus and the Investment Advisory Agreement. There
does not exist to the knowledge of the Investment Adviser any proceeding or any
facts or circumstances the existence of which is reasonably likely to lead to
any proceeding which might materially adversely affect the registration of the
Investment Adviser with the Commission.
(iii) This Agreement has been and each of the Investment Advisory Agreement
and any other Trust Agreement to which the Investment Adviser is a party has
been or will
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be as of the Effective Date duly and validly authorized and duly executed and
delivered by the Investment Adviser and will comply in all material respects
with all applicable provisions of the Advisers Act, the Investment Company Act,
and the rules and regulations under such Acts, and, assuming due authorization,
execution and delivery by the other parties thereto, will be a legal, valid,
binding and enforceable obligation of the Investment Adviser, subject as to
enforcement to bankruptcy, insolvency, reorganization, moratorium and other laws
of general applicability relating to or affecting creditors' rights, and to
general pri nciples of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law), except as to rights of
indemnity and contribution hereunder may be limited by federal or state
securities laws.
(iv) Neither the execution, delivery or performance by the Investment
Adviser of its obligations under this Agreement, the Investment Advisory
Agreement or any other Trust Agreement to which the Investment Adviser is a
party nor the consummation of the transactions contemplated therein or in the
Registration Statement nor the fulfillment of the terms thereof conflicts or
will conflict with or constitutes or will constitute a material breach of or a
default under, any agreement, indenture, lease or other instrument to which the
Investment Adviser is a party or by which it or any of its properties may be
bound, or violates or will violate in any material manner any statute, law,
regulation or filing or judgment, injunction, order or decree applicable to the
Investment Adviser or any of its properties or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Investment Adviser. The Investment Adviser is not subject to any order of any
court or of any arbitrator, governmental authority or administrative agency.
(v) There are no legal or governmental proceedings pending or, to the
knowledge of the Investment Adviser, threatened or contemplated against the
Investment Adviser or to which the Investment Adviser or any of its properties
is subject, that are required to be described in the Registration Statement or
the Prospectus (or any amendment or supplement to either of them) but are not
described as required or any proceeding that may reasonably be expected to
involve a prospective Adviser Material Adverse Effect.
(vi) Except for the need to have the Commission declare the Registration
Statement effective, no consent, approval, authorization, notification or order
of, or any filing with, any court or governmental agency or body, whether
foreign or domestic, is required for the consummation by the Investment Adviser
of the transactions contemplated by this Agreement.
(vii) Except as disclosed in the Registration Statement and the Prospectus
(or any amendment or supplement to either of them), subsequent to the respective
dates as of which such information is given in the Registration Statement and
the Prospectus (or any amendment or supplement to either of them), the
Investment Adviser has not incurred any liability or obligation, direct or
contingent, or entered into any transaction, not in the ordinary course of
business, that is material to the Investment Adviser or the Trust and that is
required to be disclosed in the Registration Statement or the Prospectus and
there has not been any material adverse change, or any development involving or
which may reasonably be expected to involve, a prospective Adviser Material
Adverse Effect.
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(viii) (A) The Investment Adviser owns or possesses all material
governmental licenses, permits, consents, orders, approvals or other
authorizations (collectively, "Adviser Permits"), whether foreign or domestic,
to enable the Investment Adviser to perform its obligations under the Investment
Advisory Agreement; (B) the Investment Adviser has fulfilled and performed all
its material obligations with respect to such Adviser Permits and no event has
occurred which allows, or after notice or lapse of time would allow, revocation
or termination thereof or result in any other material impairment of the rights
of the Investment Adviser under any such permit, subject in each case to such
qualification as may be set forth in the Registration Statement and Prospectus;
and (C) none of such Adviser Permits contains any restriction that is materially
burdensome to the Investment Adviser, except where the failure of (A), (B) or
(C) to be accurate would not, individually or in the aggregate, have an Adviser
Material Adverse Effect.
(ix) Except as stated in this Agreement and in the Prospectus (and any
amendment or supplement thereto), the Investment Adviser has not taken, nor will
it take, directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in stabilization or manipulation of
the price of any securities issued by the Trust to facilitate the sale or resale
of the Shares, and the Investment Adviser is not aware of any such action taken
or to be taken by any affiliates of the Investment Adviser.
(x) The information regarding the Investment Adviser in the Registration
Statement and the Prospectus complies or will comply in all material respects
with the requirements of Form N-2 and does not and will 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 (in the case
of the Prospectus, in light of the circumstances under which they were made) not
misleading.
(c) Any certificate required by this Agreement that is signed by any
officer of the Trust or the Investment Adviser and delivered to the Distributor
or counsel for the Distributor shall be deemed a representation and warranty by
the Trust or the Investment Adviser, as the case may be, to the Distributor, as
to the matters covered thereby.
2. AGREEMENT TO ACT AS DISTRIBUTOR.
(a) On the basis of the representations and warranties contained herein,
and subject to the terms and conditions of the Offering:
(i) The Trust appoints the Distributor as the exclusive Distributor in
connection with the Offering and the Distributor accepts that appointment. The
Trust also authorizes the Distributor to form and manage a group of securities
dealers (each, a "Soliciting Dealer" and, collectively, the "Soliciting Group")
to solicit the sale of Shares pursuant to and in accordance with a Soliciting
Dealer Agreement, in the form attached hereto as Exhibit A. The Distributor
represents and warrants that it is a broker-dealer registered under the Exchange
Act and a member in good standing of the NASD.
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(ii) The Distributor agrees to (A) solicit the sale of Shares, in
accordance with the Securities Act, the Investment Company Act, the Rules and
Regulations, the Exchange Act, the rules and regulations of the Exchange Act and
the NASD's Conduct Rules, subject to the terms and conditions of this Agreement
and in accordance with the terms and conditions and the procedures described in
the Registration Statement and Prospectus; and (B) form and manage the
Soliciting Group and to use its best efforts to solicit the sale of Shares, in
accordance with the Securities Act, the Investment Company Act, the Rules and
Regulations, the Exchange Act, the rules and regulations of the Exchange Act and
the NASD's Conduct Rules, subject to the terms and conditions of this Agreement
and in accordance with the terms and conditions and the procedures described in
the Registration Statement and the Prospectus. No securities dealer shall be
considered a Soliciting Dealer until it shall have entered into a Soliciting
Dealer Agreement with the Distributor in the form of Exhibit A hereto. The
Distributor shall be responsible for accepting and rejecting all purchase orders
with respect to Shares submitted by Soliciting Dealers.
(b) The Trust and the Distributor agree that the Distributor is an
independent contractor with respect to the solicitation of the sale of Shares
contemplated by this Agreement and the Distributor represents and warrants that
it is acting on its own behalf in entering into this Agreement and performing
its obligations hereunder.
(c) In rendering the services contemplated by this Agreement, the
Distributor will not be subject to any liability to the Trust, the Investment
Adviser, any of their affiliates or any other person, for any act or omission on
the part of any Soliciting Dealer or any other person, and the Distributor will
not be liable for any act or omission in performing its obligations under this
Agreement, except as otherwise set forth in Section 7 hereto and except for any
losses, claims, damages, liabilities and expenses that are finally judicially
determined to have resulted primarily from the bad faith, willful misconduct or
gross negligence of the Distributor or by reason of the reckless disregard of
the obligations and duties of the Distributor under this Agreement.
3. DISTRIBUTOR AND SOLICITATION FEES. The Trust agrees to pay, via the
Trust's transfer agent, the Distributor on the date of delivery and payment of
the Shares (the "Closing Date"), in full payment for its soliciting efforts,
fees (the "Sales Load") equal to $1.00 per Share for each Share issued pursuant
to the sale of Shares where the purchaser is purchasing less than $500,000 worth
of Shares, $0.50 per Share for each Share issued pursuant to the sale of Shares
where the purchaser is purchasing $500,000 or more but less than $1,000,000
worth of Shares and $0.25 per Share for each Share issued pursuant to the sale
of Shares where the purchaser is purchasing $1,000,000 or more worth of Shares.
Notwithstanding the foregoing sentence, the Trust agrees that the Sales Load
shall be paid on behalf of the Distributor only to each Soliciting Dealer
designated by the Distributor, and if no Soliciting Dealer is so designated or a
Soliciting Dealer is otherwise not entitled to receive compensation pursuant to
the terms of the Soliciting Dealer Agreement, then the Distributor shall be
entitled to receive the Sales Load for such sale of Shares. Payment to the
Distributor or a Soliciting Dealer, as the case may be, will be in the form of a
wire transfer of same day funds to an account or accounts identified by the
Distributor or each Soliciting Dealer designated by the Distributor, as the case
may be. Such payments shall be made in same day funds on or before the Closing
Date.
11
4. OTHER AGREEMENTS.
(a) The Trust covenants with the Distributor as follows:
(i) The Trust will use its best efforts to cause the Registration Statement
to become effective under the Securities Act and the Investment Company Act, and
will advise the Distributor promptly as to the time at which the Registration
Statement and any amendments thereto (including any post-effective amendment)
become so effective.
(ii) The Trust will advise the Distributor promptly and, if requested by
the Distributor, will confirm such advice in writing: (A) of any request made by
the Commission for amendment of or a supplement to the Registration Statement or
the Prospectus (or any amendment or supplement to any of the foregoing) or for
additional information, (B) of the issuance by the Commission, the NASD, any
state securities commission, any national securities exchange, any arbitrator,
any court or any other governmental, regulatory, self-regulatory or
administrative agency or any official of any order suspending the effectiveness
of the Registration Statement, prohibiting or suspending the use of the
Prospectus or any Sales Material, of any notice pursuant to Section 8(e) of the
Investment Company Act, of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or the initiation of any proceeding for
any such purposes, (C) of receipt by the Trust, the Investment Adviser, any
affiliate of the Trust or the Investment Adviser or any representative or
attorney of the Trust or the Investment Adviser of any other material
communication from the Commission, the NASD, any state securities commission,
any national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official relating to the Trust (if such communication relating to the Trust is
received by such person within three years after the date of this Agreement),
the Registration Statement, the 1940 Act Notification, the Prospectus, any Sales
Material (as herein defined) (or any amendment or supplement to any of the
foregoing) or this Agreement or any of the Trust Agreements and (D) within the
period of time referred to in paragraph (v) below, of any Material Adverse
Effect or Adviser Material Adverse Effect or of the happening of any other event
which makes any statement of a material fact made in the Registration Statement
or the Prospectus, or any Sales Material (as herein defined) (or any amendment
or supplement to any of the foregoing) untrue or which requires the making of
any additions to or changes in the Registration Statement or the Prospectus or
any Sales Material (as herein defined) (or any amendment or supplement to any of
the foregoing) in order to state a material fact required by the Securities Act,
the Investment Company Act or the Rules and Regulations 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, or of the necessity to amend or
supplement the Registration Statement, the Prospectus or any Sales Material (or
any amendment or supplement to any of the foregoing) to comply in all material
respects with the Securities Act, the Investment Company Act, the Rules and
Regulations or any other law or order of any court or regulatory body. If at any
time the Commission, the NASD, any state securities commission, any national
securities exchange, any arbitrator, any court or any other governmental,
regulatory, self-regulatory or administrative agency or any official shall issue
any order suspending the effectiveness of the Registration Statement,
12
prohibiting or suspending the use of the Prospectus or any Sales Material (or
any amendment or supplement to any of the foregoing) or suspending the
qualification of the Shares for offering or sale in any jurisdiction, the Trust
with the cooperation of the Investment Adviser and the Distributor will make
every reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
(iii) The Trust will give the Distributor notice of its intention to file
any amendment to the Registration Statement (including any post-effective
amendment) or any amendment or supplement to the Prospectus (including any
revised Prospectus which the Trust proposes for use by the Distributor in
connection with the Offering, which differs from the Prospectus on file at the
Commission on the Effective Date, whether or not such revised prospectus is
required to be filed pursuant to Rule 497(c) or Rule 497(h) under the Securities
Act), whether pursuant to the Investment Company Act, the Securities Act, or
otherwise, and will furnish the Distributor with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such amendment or supplement to which the
Distributor or counsel for the Distributor shall reasonably object.
(iv) The Trust will, without charge, deliver to the Distributor, as soon as
practicable, the number of copies of the Registration Statement as originally
filed and of each amendment thereto as it may reasonably request, in each case
with the exhibits filed therewith.
(v) The Trust will, without charge, furnish to the Distributor, from time
to time during the period when the Prospectus is required to be delivered under
the Securities Act, such number of copies of the Prospectus (as amended or
supplemented) as the Distributor may reasonably request for the purposes
contemplated by the Securities Act or the Rules and Regulations thereunder. The
Trust consents to the use of the Prospectus in accordance with the provisions of
the Securities Act and with the state securities or blue sky laws of the
jurisdictions in which the Shares are offered by the Distributor and by all
Soliciting Dealers in connection with the Offering and for such period of time
thereafter as the Prospectus is required by the Securities Act to be delivered
in connection therewith in accordance with the terms and conditions of the
Soliciting Dealer Agreement.
(vi) If any event shall occur as a result of which it is necessary, in the
judgment of the Trust or the reasonable opinion of counsel for the Distributor,
to amend or supplement the Registration Statement or the Prospectus in order to
make the Prospectus not misleading in the light of the circumstances existing at
the time it is delivered to a potential investor, the Trust will forthwith amend
or supplement the Prospectus by preparing and filing with the Commission (and
furnishing to the Distributor a reasonable number of copies of) an amendment or
amendments of the Registration Statement or an amendment or amendments of or a
supplement or supplements to, the Prospectus (in form and substance satisfactory
to counsel for the Distributor), at the Trust's expense, which will amend or
supplement the Registration Statement or the Prospectus so that the Prospectus
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the
13
light of the circumstances existing at the time the Prospectus is delivered to
an investor, not misleading; provided, however, that if the Trust does not
promptly amend or supplement the Registration Statement or the Prospectus in
form and substance reasonably satisfactory to counsel for the Distributor, then
the Distributor may terminate this Agreement pursuant to Section 9(a)(v) and the
Trust shall, at the Trust's expense, amend or supplement the Registration
Statement or the Prospectus to state the Distributor has terminated this
Agreement with respect to the Offering.
(vii) The Trust will endeavor, in cooperation with the Distributor and its
counsel, to assist such counsel to qualify the Shares for offering and sale
under the applicable securities laws of such states and other jurisdictions of
the United States as the Distributor may designate and maintain such
qualifications in effect for the duration of the Offering; provided, however,
that the Trust will not be obligated to qualify in any jurisdiction in which the
Trust would be required to (x) file any general consent to service of process,
(y) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not now so qualified or (z) be subject to taxation
in such jurisdiction. The Trust will file such statements and reports as may be
required by the laws of each jurisdiction in which the Shares have been
qualified as above provided.
(viii) For a period of 180 days from the Closing Date, the Trust will not,
without the prior consent of the Distributor, offer or sell, or enter into any
agreement to sell, any equity or equity-related securities of the Trust or
securities convertible into such securities, other than Shares that are offered
in the Offering, Other Shares or Shares issued pursuant to reinvestment of
dividends or distributions or pursuant to any distribution of dividends or
capital gains payable in Other Shares or Shares declared by the Trust or
pursuant to a share split declared by the Trust.
(ix) The Trust will apply the net proceeds from the Offering as set forth
under "Use of Proceeds" in the Prospectus and in such a manner as to comply with
the investment objectives, policies and restrictions of the Trust as described
in the Prospectus.
(x) During the period of three years hereafter, the Trust will furnish to
the Distributor (i) as soon as available, a copy of each report of the Trust
mailed to shareholders or filed with the Commission other than reports on Form
N-SAR, and (ii) from time to time such other information concerning the Trust as
the Distributor may reasonably request in writing.
(xi) In the event that at any time on or prior to the final issuance and
sale of Shares pursuant to the Offering any of the representations, warranties
or agreements of the Trust would not be true and correct in all material
respects as if given or made at such time, the Trust shall promptly notify the
Distributor thereof. The Trust shall also promptly notify the Distributor of
its failure to perform any obligation on its part required to be performed under
this Agreement or to satisfy any condition on its part required to be satisfied
under this Agreement on or before the Closing Date.
14
(b) Except as stated in this Agreement and in the Prospectus (and any
amendment or supplement thereto), the Trust and the Investment Adviser will not
take, directly or indirectly, any action designed to or which might reasonably
be expected to cause or result in stabilization or manipulation of the price of
any securities issued by the Trust to facilitate the sale or resale of the
Shares.
(c) In the event that at any time on or prior to the final issuance and
sale of Shares pursuant to the Offering any of the representations, warranties
or agreements of the Investment Adviser would not be true and correct in all
material respects as if given or made at such time, the Investment Adviser shall
promptly notify the Distributor thereof. The Investment Adviser shall also
promptly notify the Distributor of its failure to perform any obligation on its
part required to be performed under this Agreement or to satisfy any condition
on its part required to be satisfied under this Agreement on or before the
Closing Date.
5. PAYMENT OF EXPENSES.
(a) The Trust or the Adviser will pay all expenses incident to the
performance of the obligations of the Trust and the Adviser under this
Agreement, including, but not limited to, expenses relating to (i) the printing
and filing of the Registration Statement, the 1940 Act Notification, the
Prospectus and of each amendment or supplement to any of them; (ii) the
preparation, printing, authentication, issuance and delivery of the certificates
for the Shares, if any, including any stamp taxes in connection with the
original issuance and sale of Shares, (iii) the fees and disbursements of the
Trust's counsel (including the fees and disbursements of local counsel) and
accountants, (iv) the qualification of the Shares under securities laws in
accordance with the provisions of Section 4(a)(vii) of this Agreement, including
reasonable fees, expenses and disbursements of counsel to the Distributor or any
other authorized person relating to the preparation, printing or reproduction,
and delivery of the preliminary and supplemental blue sky memoranda and such
registration and qualification), (v) the printing or other production and
delivery (including postage, air freight charges and charges for counting and
packaging) of copies of the Registration Statement, the Prospectus, any Sales
Material and all amendments or supplements to any of them as may be reasonably
requested for use in connection with the solicitation of the sale of Shares,
(vi) the printing and other production and delivery of copies of the Blue Sky
Survey, if any, (vii) the filing fees and the fees and expenses of counsel to
the Distributor in connection with any filings required to be made with the
NASD, (viii) the reproduction and delivery of this Agreement, any Soliciting
Dealer Agreement and all other agreements or documents reproduced and delivered
in connection with the offering of the Shares; and (ix) the reasonable and fully
documented transportation and other related expenses incurred by or on behalf of
Trust representatives, including the Distributor, in connection with
presentations to prospective purchasers of the Shares, which expenses covered by
this clause (ix) shall not exceed $200,000.
(b) If this Agreement is terminated by the Trust or Investment Adviser for
any reason (other than a material breach by the Distributor of its duties under
this Agreement) or by the Distributor, in accordance with the provisions of
Section 6 or Section 9(a) of this Agreement, the Trust and the Investment
Adviser agree to reimburse the Distributor for all of its reasonable out-of-
pocket expenses incurred in connection with its performance hereunder, including
15
the reasonable fees and disbursements of counsel for the Distributor. In the
event the Offering contemplated hereunder is not consummated, the Trust and the
Investment Adviser agree to pay all of the costs and expenses set forth in
paragraph (a) of this Section 5 which the Trust and the Investment Adviser would
have paid if such Offering had been consummated.
6. CONDITIONS OF THE DISTRIBUTOR'S OBLIGATIONS. The obligations of the
Distributor hereunder are subject to the accuracy of the respective
representations and warranties of the Trust and the Investment Adviser contained
herein on the date hereof and as if made on each date up to and including the
final issuance and sale of Shares pursuant to the Offering, to the performance
by the Trust and the Investment Adviser of their respective obligations
hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective not later than
5:30 P.M., New York City time, on September 8, 2000, or at such later time and
date as may be approved in writing by the Distributor; the Prospectus and any
amendment or supplement thereto shall have been filed with the Commission in the
manner and within the time period required by Rule 497(c), (e) or (h), as the
case may be, under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement or any amendment thereto shall have
been issued, and no proceedings for that purpose shall have been instituted or
threatened or, to the knowledge of the Trust, the Investment Adviser or the
Distributor, shall be contemplated by the Commission; and the Trust shall have
complied with any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise).
(b) Subsequent to the effective date of this Agreement, there shall not
have occurred (i) any change or any development involving a prospective change
in or affecting the condition (financial or other), business, prospects,
properties, net assets, or results of operations of the Trust or the Investment
Adviser not contemplated by the Prospectus, which in the Distributor's
reasonable opinion would materially adversely affect the market for the Shares,
or (ii) any event or development relating to or involving the Trust or the
Investment Adviser or any officer or director of the Trust or the Investment
Adviser which makes any statement made in the Prospectus untrue or which, in the
opinion of the Trust and its counsel or the Distributor and its counsel,
requires the making of any addition to or change in the Prospectus in order to
state a material fact required by the Securities Act, the Investment Company Act
or the Rules and Regulations or necessary in order to make the statements
therein not misleading in light of the circumstances under which they were made,
if amending or supplementing the Prospectus to reflect such event or development
would, in the Distributor's reasonable opinion materially adversely affect the
market for the Shares.
(c) On the date of the commencement of presentations to prospective
purchasers, which is a date after the Effective Date (the "Road Show Date"), and
on the Closing Date, the Distributor shall have received:
(1) The favorable opinions, dated the Road Show Date and the Closing Date,
of Dechert Price & Xxxxxx, counsel for the Trust, in form and substance
satisfactory to counsel for the Distributor, to the effect that:
16
(i) The Trust has been duly organized and is validly existing and in good
standing as a business trust under the laws of the State of Delaware, has full
power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and Prospectus and to issue
and sell the Shares as contemplated by this Agreement, except that counsel need
express no opinion as to securities or "blue sky" laws of any state, and that
the Trust is duly qualified to do business as a foreign corporation in each
jurisdiction wherein it owns or leases real property or in which the conduct of
its business requires such qualification, except where the failure to be so
qualified would not result in a Material Adverse Effect on the Trust.
(ii) The Trust is registered with the Commission under the Investment
Company Act as a closed-end, non-diversified management investment company; to
the knowledge of such counsel, no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or threatened by
the Commission; the Registration Statement is effective under the Securities Act
and the Investment Company Act; the filing of the Prospectus pursuant to Rule
497(h) under the Securities Act, if required, has been made within the time
required by Rule 497(h); and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for any such purpose is
pending or. to the best of such counsel's knowledge, threatened by the
Commission.
(iii) The Trust has an authorized capitalization as set forth in the
Prospectus under the heading "Shares of Beneficial Interest" and the Shares
conform in all material respects to the description thereof in the Prospectus
under the heading "Shares of Beneficial Interest."
(iv) The Other Shares have been duly authorized and are validly issued,
fully paid and non-assessable and; the Shares have been duly authorized by all
requisite action on the part of the Trust for issuance and sale pursuant to the
terms of the Offering and, when issued and delivered by the Trust pursuant to
the terms of the Offering against payment of the consideration set forth in the
Prospectus, will be validly issued, fully paid and non-assessable; the form of
certificates, if any, evidencing the Shares complies with all requirements of
Delaware law; and, to the knowledge of such counsel, the issuance of the Shares
is not subject to any preemptive rights.
(v) There are no legal or governmental proceedings pending or, to the
knowledge of such counsel, threatened against the Trust, or to which the Trust
or any of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus but are not described as required.
(vi) To the knowledge of such counsel after reasonable inquiry, there are
no agreements, contracts, indentures, leases or other instruments that are
required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement by the Securities Act or
the Investment
17
Company Act or by the Rules and Regulations which have not been so described or
filed as an exhibit or incorporated therein by reference as permitted by the
Securities Act, the Investment Company Act or the Rules and Regulations.
(vii) The Trust has the power and authority to enter into this Agreement
and each of the Trust Agreements, and this Agreement and each of the Trust
Agreements have been duly authorized, executed and delivered by the Trust; each
of this Agreement and the Trust Agreements complies with all applicable
provisions of the Securities Act, the Investment Company Act and the Advisers
Act, the Rules and Regulations and the Advisers Act Rules and Regulations; and,
assuming due authorization, execution and delivery by the other parties thereto,
each of this Agreement and the Trust Agreements constitutes a legal, valid,
binding and enforceable obligation of the Trust enforceable in accordance with
its terms, subject to the qualification that the enforceability of the Trust's
obligations thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights, and to general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law) and subject to
the qualification that the right to indemnity may be limited by federal or state
laws.
(viii) The investment policies and restrictions described in the Prospectus
(including the Statement of Additional Information) under the caption
"Investment Objective and Principal Strategies" comply in all material respects
with the requirements of the Investment Company Act and the Rules and
Regulations
(ix) Neither the issuance and sale of the Shares, the execution and
delivery or performance of this Agreement or any of the Trust Agreements by the
Trust, nor the consummation by the Trust of any other of the transactions
contemplated thereby (A) requires any consent, approval, authorization or other
order of or registration or filing by the Trust with the Commission, the NASD,
any national securities exchange, any arbitrator, any court, regulatory body,
administrative agency or other governmental body, agency or official (except
such as may have been obtained with respect to the Trust's Registration
Statement or made on or prior to the Road Show Date and such as may be required
for compliance with state securities or Blue Sky laws) or conflicts or will
conflict with or constitutes or will constitute a breach of, or a default under,
the Trust Documents or other organizational documents of the Trust or (B) (a)
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, any agreement, indenture, lease or other instrument to which
the Trust is a party or by which it or any of its properties may be bound and
that is identified, in an officer's certificate of the Trust, as material to the
business, financial condition, operations, properties or prospects of the Trust,
(b) violates or will violate any statute, law or regulation (assuming compliance
with state securities and Blue Sky laws), (c) violates or will violate any
judgment, injunction, order or decree that is applicable to the Trust or any of
its properties and that is known to such counsel, or (d) will result in the
creation or imposition of any lien, charge or encumbrance
18
upon any property or assets of the Trust other than a lien, charge or
encumbrance upon property or assets of the Trust as described in the Trust's
Prospectus or contemplated by the Trust's Prospectus.
(x) No consent, approval, authorization, notification or order of, or any
filing with, any court or governmental agency or body is required under the laws
of New York, Delaware, federal law or, to such counsel's knowledge, the laws of
any other jurisdiction in the United States for the consummation by the Trust of
the transactions contemplated by this Agreement or the Registration Statement,
except (A) such as have been obtained and (B) such as may be required under the
blue sky laws of any jurisdiction in connection with the transactions
contemplated hereby.
(xi) The 1940 Act Notification, the Registration Statement, the Prospectus
and each amendment thereof or supplement thereto (other than the financial
statements and the notes thereto and the schedules and other financial and
statistical data contained therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the Securities Act and the Investment Company Act and the Rules
and Regulations.
(xii) The statements made in the Prospectus (including the Statement of
Additional Information) under the caption "Taxes", insofar as they constitute
matters of law or legal conclusions, have been reviewed by such counsel and
constitute accurate statements of any such matters of law or legal conclusions
in all material respects, and fairly present the information called for with
respect thereto by Form N-2 under the Investment Company Act.
Such counsel shall also state, in substantially the same form, that:
They have not independently verified the accuracy, completeness or fairness
of the statements made or the information contained in the Registration
Statement or the Prospectus, and, except for the statements referred to in
paragraphs (iii) and (xii) above and the information referred to in paragraph
(viii) above, they are not passing upon and do not assume any responsibility
therefor. In the course of the preparation by the Trust of the Registration
Statement and the Prospectus, they have participated in discussions with the
Distributor and employees and officers of the Trust and the Investment Adviser
and in discussions with the Trust's independent accountants, in which the
business and the affairs of the Trust and the Investment Adviser and the
contents of the Registration Statement and the Prospectus were discussed. On the
basis of information that they have gained in the course of their representation
of the Trust in connection with its preparation of the Registration Statement
and the Prospectus and their participation in the discussions referred to above,
no facts have come to their attention that would lead them to believe that as of
the Effective Date, the Registration Statement contains any untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading, or
that as of the Effective Date, Road Show Date and Closing Date the Prospectus
contains an untrue statement of material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of
19
the circumstances under which they were made, not misleading (in each case other
than the financial statements and schedules, the notes thereto and any schedules
and other financial data contained or incorporated by reference therein or
omitted therefrom, as to which they need express no opinion).
(2) The favorable opinions, dated the Road Show Date and the Closing Date,
of Xxxx, Xxxxxx & Xxxxxx, counsel for the Investment Adviser, in form and
substance satisfactory to counsel for the Distributor, to the effect that:
(i) The Investment Adviser is duly organized and validly existing as a
general partnership under the laws of the State of Delaware, with power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and Prospectus and is duly qualified
to do business as a foreign partnership in each jurisdiction wherein it owns or
leases real property or in which the conduct of its business requires such
qualification, except where the failure to be so qualified would not result in
an Adviser Material Adverse Effect.
(ii) The Investment Adviser is duly registered as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act or the
Investment Company Act, or the rules and regulations under such Acts, from
acting as an investment adviser for the Trust as contemplated in the Prospectus
and the Investment Advisory Agreement.
(iii) To the knowledge of such counsel there are no legal or governmental
proceedings pending or threatened against the Investment Adviser, or to which
the Investment Adviser or any of its properties is subject, that are required to
be described in the Registration Statement or the Prospectus but are not
described as required.
(iv) The Investment Adviser has the partnership power and authority to
enter into this Agreement and the Investment Advisory Agreement, and this
Agreement and the Investment Advisory Agreement have been duly authorized,
executed and delivered by the Investment Adviser; and assuming due
authorization, execution and delivery by the other parties thereto, each of this
Agreement and the Investment Advisory Agreement constitutes a legal, valid,
binding and enforceable obligation of the Investment Adviser enforceable in
accordance with its terms, subject to the qualification that the enforceability
of the Investment Adviser's obligations thereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, and to general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law) and subject to the qualification that the right to indemnity may be
limited by federal or state laws.
(v) Neither the execution, delivery or performance by the Investment
Adviser of its obligations under this Agreement nor the consummation by the
20
Investment Adviser of the transactions contemplated therein or in the
Registration Statement (A) requires any consent, approval, authorization or
other order of or registration or filing by the Investment Adviser with the
Commission, the NASD, any national securities exchange, any arbitrator, any
court, regulatory body, administrative agency or other governmental body, agency
or official (except such as may have been obtained with respect to the Trust's
Registration Statement or made on or prior to the Road Show Date and such as may
be required for compliance with state securities or Blue Sky laws) or conflicts
or will conflict with or constitutes or will constitute a breach of, or a
default under, the partnership agreement or other organizational documents of
the Investment Adviser, or (B) (a) to the knowledge of such counsel conflicts or
will conflict with or constitutes or will constitute a breach of, or a default
under, any agreement, indenture, lease or other instrument to which the
Investment Adviser is a party or by which it or any of its properties may be
bound, (b) violates or will violate any statute, law or regulation (assuming
compliance with state securities and Blue Sky laws), (c) to the knowledge of
such counsel violates or will violate any judgment, injunction, order or decree
that is applicable to the Investment Adviser or any of its properties and that
is known to such counsel or, or (d) will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Investment
Adviser.
(vi) To such counsel's knowledge after reasonable inquiry, the Investment
Adviser is not in violation of its partnership agreement, nor is the Investment
Adviser in default under any material agreement, indenture or instrument or in
material breach or violation of any judgment, decree, order, rule or regulation
of any court or governmental or self-regulatory agency or body.
(vii) The description of the Investment Adviser (other than statements as
to the Investment Adviser's investment decisions, beliefs and strategies
regarding the Trust's portfolio as to which such counsel need express no
opinion) in the Registration Statement and the Prospectus (including the
Statement of Additional Information) does not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading.
Such counsel may also state, in substantially the same form, that:
It has not independently verified the accuracy, completeness or fairness of
the statements made or the information contained in the Registration Statement
or the Prospectus, and, except for the information referred to in paragraph
(vii) above, is not passing upon and does not assume any responsibility
therefor.
(c) The Distributor shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the Distributor, such opinion, dated the Road Show Date and the
Closing Date and addressed to the Distributor, substantially to the effect that
(i) the Trust has been duly organized
21
and is validly existing and in good standing as a business trust under the laws
of the State of Delaware; (ii) the outstanding Shares have been duly authorized
on the part of the Trust and, when issued and delivered by the Trust pursuant to
the terms of the Offering against payment of the consideration set forth in the
Prospectus, will be validly issued, fully paid and non-assessable; (iii) the
Shares conform in all material respects to the description thereof in the
Prospectus under the heading "Shares of Beneficial Interest"; and (iv) this
Agreement has been duly authorized, executed and delivered by the Trust and the
Investment Adviser. It is agreed that Xxxxxxx Xxxxxxx & Xxxxxxxx may rely on the
opinions of Dechert Xxxxx & Xxxxxx and Xxxx, Xxxxxx & Xxxxxx in issuing its
opinion.
(d) The Trust and Investment Adviser shall have furnished or caused to be
furnished to the Distributor such further certificates and documents as the
Distributor shall have reasonably requested.
(e) Ernst & Young LLP shall have furnished to the Distributor a letter,
dated the Road Show Date and the Closing Date, in form and substance
satisfactory to the Distributor.
(f) (i) No order suspending the effectiveness of the Registration Statement
or prohibiting or suspending the use of the Prospectus (or any amendment or
supplement thereto) or any Sales Material shall have been issued and no
proceedings for such purpose or for the purpose of commencing an enforcement
action against the Trust, the Investment Adviser or, with respect to the
transactions contemplated by the Prospectus (or any amendment or supplement
thereto) and this Agreement, the Distributor, may be pending before or, to the
knowledge of the Trust, the Investment Adviser or the Distributor or in the
reasonable view of counsel to the Distributor, shall be threatened or
contemplated by the Commission at or prior to the Road Show Date or the Closing
Date and that any request for additional information on the part of the
Commission (to be included in the Registration Statement, the Prospectus or
otherwise) be complied with to the satisfaction of the Distributor, (ii) there
shall not have been any change in the capitalization of the Trust nor any
material increase in the short-term or long-term debt of the Trust (other than
in the ordinary course of business) from that set forth or contemplated in this
Agreement, the Registration Statement or the Prospectus (or any amendment or
supplement thereto); (iii) there shall not have been, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus (or any amendment or supplement to either of them), except as
may otherwise be stated in the Registration Statement and Prospectus (or any
amendment or supplement to either of them), any Material Adverse Effect or
Adviser Material Adverse Effect; (iv) the Trust shall not have any liabilities
or obligations, direct or contingent (whether or not in the ordinary course of
business), that are material to the Trust, other than those reflected in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them); and (v) all the representations and warranties of each party to
this Agreement contained in this Agreement shall be true and correct on and as
of the date hereof and on and as of the Road Show Date and the Closing Date as
if made on and as of the Road Show Date and the Closing Date, respectively, and
the Distributor shall have received a certificate of each party to this
Agreement, dated the Road Show Date and the Closing Date and signed by the chief
executive officer and the chief financial officer of each such party (or such
other officers as are acceptable to the Distributor), to the effect set forth in
this Section 6(f) and in Section 6(g) hereof.
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(g) No party to this Agreement shall have failed at or prior to the Road
Show Date or the Closing Date to have performed or complied in all material
respects with any of its agreements herein contained and required to be
performed or complied with by it hereunder at or prior to the Road Show Date or
the Closing Date, as the case may be.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects satisfactory in form and
substance to each of the parties and its counsel, this Agreement and all
obligations of any party to this Agreement hereunder may be canceled at, or at
any time prior to, the Closing Date by any party to this Agreement. Notice of
such cancellation shall be given in writing or by telephone or telegraph
confirmed in writing.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Trust will indemnify and hold harmless the Distributor, the
directors, officers, employees and agents of the Distributor and each person, if
any, who controls the Distributor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several (including any investigation,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted), to
which they or any of them may become subject under the Securities Act, the
Exchange Act, the Investment Company Act, the Advisers Act or other statutory
law or regulation, at common law or otherwise, whether foreign or domestic, but
only insofar as such losses, claims, damages or liabilities arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Prospectus or the Sales
Material, and any amendment or supplement thereto, or the omission or alleged
omission to state in any or all such documents a material fact required to be
stated therein or necessary to make the statements therein (in the case of the
Prospectus and the Sales Material, in light of the circumstances under which
such statements were made) not misleading or (ii) the failure by the Trust to
make the Offering, including the withdrawal or termination of the Offering by
the Trust, except if the failure to make the Offering or any withdrawal or
termination of the Offering by the Trust was directly or indirectly as a result
of a breach of the Distributor's obligations under this Agreement or the
Distributor's bad faith, wilful misconduct, gross negligence or reckless
disregard of its duties and obligations; provided that the Trust shall not be
liable to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
furnished in writing to the Trust by the Distributor or its affiliates or agents
expressly for use in the Registration Statement, Prospectus or Sales Material or
with respect to Sales Material that has neither been prepared by the Trust nor
approved for use by the Trust. The foregoing indemnity agreement is in addition
to any liability which the Trust may otherwise have to the Distributor or any
controlling person of the Distributor.
(b) The Investment Adviser will indemnify and hold harmless the
Distributor, the directors, officers, employees and agents of the Distributor
and each person, if any, who controls the Distributor within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several (including
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any investigation, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claim asserted), to which they or any of them may become subject under the
Securities Act, the Exchange Act, the Investment Company Act, the Advisers Act
or other statutory law or regulation, at common law or otherwise, whether
foreign or domestic, but only insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
Prospectus or the Sales Material, and any amendment or supplement thereto, or
the omission or alleged omission to state in any or all such documents a
material fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus and the Sales Material, in light of the
circumstances under which such statements were made) not misleading; provided,
that the Investment Adviser shall not be liable to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with information furnished in writing to the
Trust by the Distributor or its affiliates or agents expressly for use in the
Registration Statement, Prospectus or Sales Material or with respect to Sales
Material that has neither been prepared by the Investment Adviser nor approved
for use by the Investment Adviser. The foregoing indemnity agreement is in
addition to any liability which the Investment Adviser may otherwise have to the
Distributor or any controlling person of the Distributor. This Section 7(b) is
not intended to diminish in any way the Trust's obligation timely to indemnify
and hold harmless any indemnified party pursuant to Section 7(a). Each
indemnified party agrees that the Investment Adviser may bring suit, or take any
other appropriate action in law or in equity, against the Trust in the name of
such indemnified party to enforce the Trust's indemnity obligation to such
indemnified party pursuant to Section 7(a) in respect of any amount that the
Investment Adviser has paid to such indemnified party pursuant to this Section
7(b). Such indemnified party will cooperate with and assist the Investment
Adviser in the conduct of any such action and the Investment Adviser will pay
all expenses of such action and will reimburse such indemnified party for all
reasonable out-of-pocket expenses. The Investment Adviser will be entitled to
all amounts recovered in any such action.
(c) The Distributor will indemnify and hold harmless the Trust, the
Investment Adviser, each trustee and officer of the Trust who signs the
Registration Statement and each person, if any, who controls the Trust or the
Investment Adviser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Trust or the Investment Adviser to the Distributor, but only insofar as
losses, claims, damages or liabilities arise out of or are based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with information furnished in writing to the
Trust by the Distributor or its affiliates or agents expressly for use in the
Registration Statement, Prospectus or Sales Material. This indemnity agreement
will be in addition to any liability that the Distributor might otherwise have.
(d) Any party that proposes to assert the right to be indemnified under
this Section 7 will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 7, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission to notify such indemnifying party will not,
except to the extent set forth below, relieve it from liability that it may have
to any indemnified party. No
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indemnification provided for in Sections 7(a) -(c) hereof shall be available to
any party who shall fail to give notice as provided in this Section 7(d) if the
party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was prejudiced by the failure to give such notice,
but the omission to notify such indemnifying party of such action shall not
relieve it from any liability that it may have to any indemnified party for
contribution or otherwise on account of the provisions in Sections 7(a) - (c).
If any such action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will be entitled
to participate in, and, to the extent that it elects by delivering written
notice to the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with any other
indemnifying party similarly notified, to assume the defense of the action, with
counsel reasonably satisfactory to the indemnified party, and, after notice from
the indemnifying party to the indemnified party of its election to assume the
defense, the indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified party
in connection with the defense. The indemnified party will have the right to
employ its counsel in any such action, but the fees and expenses 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) the indemnified party has reasonably concluded that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to 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 and expenses of
counsel will be at the expense of the indemnifying party or parties. All such
fees and expenses will be reimbursed promptly as they are incurred. An
indemnifying party will not be liable for any settlement of any action or claim
effected without its written consent or, in connection with any proceeding or
related proceeding in the same jurisdiction, for the fees and expenses of more
than one separate counsel for all indemnified parties except to the extent
provided herein.
(e) In no case shall the indemnification provided in this Section 7 be
available to protect any person against any liability to which any such person
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its or his obligations or duties hereunder, or
by reason of its or his reckless disregard of its or his obligations and duties
hereunder.
(f) In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 7 is unavailable or insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), the Trust, the Investment Adviser
and the Distributor, in order to provide for just and equitable contribution,
agree as provided below. The Trust and the Distributor shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportions as are appropriate to reflect the relative benefits received by the
Trust on the one hand and by the Distributor on the other from the offering of
the Shares; provided, however, that neither the Trust nor the Distributor shall
contribute to the amount paid or payable by such indemnified party as a result
of any such losses, claims,
25
damages or liabilities (or actions in respect thereof) arising out of or based
upon any untrue statement or alleged untrue statement or omission or alleged
omission contained in the Prospectus (or any amendment or supplement thereto) in
respect of statements contained under the captions "Management of the Fund" or
under the caption "Prospectus Summary" insofar as the statements under the
second caption related to the information under the first caption referred to
above, which amounts shall be contributed by the Investment Adviser to the
amount paid or payable by the indemnified party. If the allocation between the
Trust and the Distributor provided by the immediately preceding sentence is
unavailable for any reason, the Trust and the Distributor shall contribute in
such proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Trust and the Distributor,
respectively, in connection with the statements or omissions that result in such
loss, claim, damage or liability (or actions in respect thereof) as well as any
other relevant equitable considerations, subject, however, to the proviso
contained in the immediately preceding sentence. The relative benefits received
by the Trust on the one hand and the Distributor on the other shall be deemed to
be in the same proportion as the aggregate net proceeds from the subscription
for the Shares (before deducting expenses) received by the Trust bears to the
amounts received by the Distributor pursuant to Section 3 hereof. The relative
fault of the Trust on the one hand and the Distributor on the other shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Trust or the Distributor, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Trust, the Investment Adviser
and the Distributor agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to above in this paragraph (f). Notwithstanding any
other provision of this paragraph (f), the Distributor shall not be obligated to
make contribution hereunder that in the aggregate exceeds (i) the amount of the
total Sales Load paid to the Distributor (including Sales Loads paid to
Soliciting Dealers on behalf of the Distributor) pursuant to Section 3 of this
Agreement, less (ii) the aggregate amount of any damages that the Distributor
has otherwise been required to pay in respect of the same or any substantially
similar claim, and 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. For purposes of this paragraph (f), each person, if any, who
controls the Investment Adviser or the Distributor within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Investment Adviser or the Distributor,
respectively, and each trustee of the Trust, each officer of Trust who signed
the Registration Statement and each person, if any, who controls the Trust,
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
shall have the same rights to contribution as the Trust. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim for contribution may be
made under this Section 7, notify such party or parties from whom contribution
may be sought, but the omission so to notify will not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have otherwise than under this Section 7. No party will be liable for
contribution with respect to any action or claim settled without its written
consent.
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(g) The Trust and the Investment Adviser acknowledge that the statements
contained in the second and third sentences of the first paragraph under the
caption "How to Purchase Fund Shares" in the Prospectus constitute the only
information furnished in writing to the Trust by the Distributor expressly for
use in such document; and the Distributor confirms that such statements are
correct in all material respects.
8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. The
respective agreements, representations warranties, indemnities and other
statements of the Trust or its officers, of the Investment Adviser and of the
Distributor set forth in or made pursuant to this Agreement shall survive the
Closing Date and will remain in full force and effect, regardless of any
investigation made by or on behalf of Distributor, the Trust or the Investment
Adviser or any of the officers, trustees or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the Shares
pursuant to the Offering; provided, however, that following delivery and payment
for the Shares, the remedies against the Investment Adviser for breach of its
representations and warranties shall, in the absence of fraudulent
misrepresentation by the Investment Adviser, which shall not include fraudulent
misrepresentation attributed to the Investment Adviser solely by virtue of and
in the event of its being a controlling person of the Trust, be limited to those
available pursuant to Section 7 hereof. The provisions of Section 5 and 7 hereof
shall survive the termination or cancellation of this Agreement.
9. TERMINATION OF AGREEMENT. (a) This Agreement shall be subject to
termination in the absolute discretion of the Distributor, by notice given to
the Trust prior to the expiration of the Offering, if prior to such time (i)
there has been a material change in general economic, political, social or
financial conditions in the United States or the effect of international
conditions on the financial markets in the United States such that, in the
Distributor's judgment, it is impracticable to proceed with the Offering, (ii)
there has occurred any outbreak or material escalation of hostilities or other
calamity or crisis the effect of which, in the Distributor's judgment, renders
it impracticable to proceed with the Offering, (iii) trading in securities
generally on the New York Stock Exchange shall have been suspended or limited,
(iv) a banking moratorium shall have been declared either by Federal or New York
State authorities or (v) the Trust shall fail to amend or supplement the
Registration Statement or the Prospectus as provided in Section 4(a)(vi).
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 5.
10. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Distributor, will be mailed, delivered or
telegraphed and confirmed to Chase Securities Inc., Attn.: Xxxxxxx Xxxxx, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; or if sent to the Trust or the Investment
Adviser, will be mailed, delivered or telegraphed and confirmed to them c/o
Munder Capital Management, Attn: Xxxxx Xxxxxxxx, Xxxxxx Capital Center, 000
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
11. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and will inure to the
benefit of the officers
27
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
12. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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If the foregoing is in accordance with your understanding of our agreement,
please so indicate in the space provided below for that purpose, whereupon this
letter shall constitute a binding agreement among the Trust, the Investment
Adviser and the Distributor.
Very truly yours,
Munder @Vantage Fund
By: __________________________
Name:
Title:
Munder Capital Management
By: __________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Chase Securities Inc.
By: ___________________________
Name:
Title:
29
