PRESTIGA FUND, LLC
0 Xxxxxxxx Xxxx Xxxxxx
P. O. Xxx 000
Xxxxxxxx, XX 00000-0000
PRINCIPAL SELLING AGENT AND ON GOING SERVICES AGREEMENT
October 4, 2004
Board of Directors
MHA Financial Corp
0 Xxxxxxxx Xxxx Xxxxxx
P. O. Xxx 000
Xxxxxxxx, XX 00000-0000
Dear Board of Directors:
Prestiga Fund, LLC, a Delaware limited liability company formed on
October 4, 2004 (the "Issuer" or the "Company"), operates under a LLC
Operating Agreement dated October 4, 2004 (the "LLC Operating Agreement") to
engage in the speculative trading of futures, options on futures and other
related securities and commodities. Although the LLC Operating Agreement
provides that the business of the Issuer may be conducted by either Prestiga
Capital Management, Inc., a Delaware corporation, (the "Corporate Managing
Member") or any other Managing Member, MHA Financial Corp ("MHA" or
"Principal Selling Agent") is to deal only with the Corporate Managing
Member.
To raise money for its business purposes, the Issuer intends to file a
United States Securities and Exchange Commission (the "SEC") Form S-1 (the
"Form S-1") in substantially the form submitted to you today with the SEC,
the National Association of Securities Dealers, Inc. (the "NASD"), the
National Futures Association (the "NFA"), various State security regulators
and any other appropriate regulatory agencies to permit the sale to the
public of its units of membership interest (the "Units") pursuant to the
terms of an offering document (the "Prospectus") to be included within the
Form S-1.
You have represented to us that you are a Broker/Dealer member of the
NASD and that you are willing to serve as the principal selling agent to
offer and sell Units and to recruit other NASD member Broker/Dealers
("Additional Selling Agents") to offer and sell Units subject to the entry of
this Agreement.
The Issuer, through its Corporate Managing Member, hereby offers to MHA
the opportunity to serve as the Principal Selling Agent to offer and sell
Units in the Issuer to qualified members of the public and, with the approval
of the Corporate Managing Member on behalf of the Issuer, to appoint
Additional Selling Agents to make offers and sales of Units upon the terms
and conditions provided in this Agreement.
The Issuer and MHA, in consideration of the mutual agreements and terms
contained in this agreement, intending to be legally bound hereby, agree as
follows:
The Issuer will offer to sell a minimum of nine hundred thousand dollars
($900,000) in value of Units consisting of nine hundred (900) Units pursuant
to the terms of the Prospectus at one thousand dollars ($1,000) per Unit (the
"Minimum").
Upon the sale of the Minimum, the Corporate Managing Member will cause the
Issuer to hold its initial closing and begin the speculative trading of
futures, options, and other securities and commodities as described in the
Prospectus. No remuneration, including continuing service fees and expenses
will be paid to you or any Additional Selling Agent for the sale of Units
prior to the commencement of business. Should the Minimum not be sold for
any reason, including the decision by the Issuer, in the sole judgment of its
Corporate Managing Member, to terminate the offering, the gross sales
proceeds plus interest will be returned directly from the depository by the
Bank to the investor who made the deposit and no further obligation to issue
Units to the investor or pay any remuneration to you will exist between the
Issuer, and Selling Agent or the investor regarding the offer and sale that
was returned.
Once the Minimum is sold, trading will commence and Units will continue to be
offered for sale at the Net Asset Value at the end of each month until either
a maximum of one hundred thousand (100,000) Units or one hundred million
dollars ($100,000,000) in value of Units is sold pursuant to the terms
described in the Prospectus or the offer is terminated by the Issuer in the
sole judgment of the Corporate Managing Member.
Units may be sold only to persons with a net worth of $150,000 or more or
having net worth of $45,000 and annual income of $45,000 or such higher
suitability requirements imposed by the state of their residence.
Principal Selling Agent will submit the states in which it is registered to
the Corporate Managing Member together with the names of the MHA Registered
Representatives that are registered in each of those states MHA intends to
authorize to make offers of Units. The Corporate Managing Member will advise
MHA the states and the MHA Registered Representatives who have been
authorized by the Corporate Managing Member to make offers and sales of
Units. MHA will confirm the grant of authority in writing to the Corporate
Managing Member.
Commencing twenty (20) days from today and upon request by the
Corporate Managing Member from time to time thereafter, MHA will submit an
estimate of the number of Units MHA believes it and all Additional Selling
Agents will sell, identified by broker/dealer, registered representative and
the number of Units per state for each broker/dealer and registered
representative for the projected sales. Upon approval of the estimate, the
Corporate Managing Member will use its best efforts to cause the Issuer to
qualify the Units for sale in the states identified and selected by MHA.
The Issuer shall have the sole authority and judgment to select the states
and the dollar amount of Units qualified for sale in each state. Subject to
the prior written agreement of MHA and the Issuer, this Agreement will be
amended, from time to time, by attachment of an Exhibit A that will identify
the broker dealer, registered representative, states, the value of Units
qualified, authorized by MHA and the Issuer to make offers of Units for sale.
Words with the initial letters capitalized have the meanings set forth in
this Agreement or in the Form S-1. In the event of any conflict in the terms
of this Agreement and the Forms S-1, the Form S-1 will control.
As a condition of the initial offering and each subsequent offering,
the Issuer will deliver the following: (i) a draft of the Form S-1, any
revisions, and post effective amendments for your review and comment, (ii)
opinion of legal counsel to the Issuer that the Company has been duly formed
pursuant to Delaware law and the Units are qualified to be issued pursuant to
Delaware law and, once issued, will represent valid interests in the Company;
(iii) the opinion of securities counsel to the Issuer that the offering of
the Units, subject to the offers and sales having been made pursuant to the
terms of the Prospectus as accepted for filing by the SEC and the NFA and all
other regulatory agencies and this Agreement are in compliance with the
registration provisions of the Securities Act of 1933, as amended (the
"33Act"); (iv) the Form S-1 and all amendments shall be filed as required
pursuant to the Commodity Exchange Act (the "CEAct"); and (v) a Blue Sky
Memorandum to identify the states which the Issuer has selected to permit the
offering of Units to be made and describe the filing of the registration
documents and amount of Units to be offered in those states. Note: The
Issuer's law firm will be licensed to practice law before Federal agencies
and one or more of the 50 states and the Blue Sky Memorandum will be in the
form customarily accepted by Issuers and NASD Broker/Dealers but will not
contain any opinions of counsel from any state, only a summary, of the
compliance with the various state securities laws.
SECTION 1. Appointment of Principal Selling Agent.
(a) The Issuer, subject to your written acceptance of the terms of this
Agreement, hereby appoints your firm a non-exclusive Principal Selling Agent
to solicit subscribers, on a best efforts basis, for the purchase of Units.
You must be continuously registered with the SEC and be a member in good
standing of the NASD. You will cause your firm and all of the registered
representatives of your firm who make offers of Units to the public to be
licensed, during the term of this offering, to sell securities by the NASD
and by the states in which they make offers and sales of the Units.
(b) The Issuer hereby gives you, as Principal Selling Agent, the right
to solicit subscriptions of the Units only in states where you have
registered as a broker-dealer, the registered representative is registered to
sell securities and the offering and the securities have been qualified by
the Issuer for sale under such states' securities laws (the "Blue Sky Laws")
and included in the Blue Sky Memorandum delivered to you. Such subscriptions
shall be evidenced by execution by the prospective investor of the
Subscription Documents defined in the Prospectus. It is understood that no
sale shall be effective unless and until the subscription is accepted by the
Issuer and the Minimum is sold. The Issuer reserves the right, in its sole
discretion, to refuse to sell Units to any person, at any time, for any
reason, without liability to that person or to your firm or to any of your
registered representatives for any remuneration or reimbursement of expenses.
(c) Nothing in this Agreement shall prevent you from acting as a selling
agent or underwriter for the securities or units or other forms of
investments of other issuers, including competitors with the Issuer, which
you may offer and sell contemporaneously with the offer and sale of Units in
the Issuer pursuant to the terms of this Agreement.
(d) The Purchase Price and terms of payment are set forth in this
Agreement and will be explained in the Form S-1. There will be no other
payments of commissions, fees or reimbursement of expenses than those
described in the Form S-1.
(e) The minimum purchase per investor shall be twenty-five (25) Units
for a subscription price of $25,000 subject to the right of the Issuer to
sell less than twenty-five (25) Units to an investor but in no event less
than five (5) Units to an investor.
(f) No offers or sales will be made pursuant to this Agreement until you
have received clearance from issuer's counsel of the Prospectus, as amended,
from time to time, and for the states to be selected by the Issuer and your
firm supplies evidence satisfactory to the Issuer that your firm and your
registered representatives are qualified to make offers and sales in the
states where offers will be made.
Originals of all subscription documents together with the check for the
proceeds payable to "EBank for the acct. of Prestiga" shall be transmitted by
the subscriber to you for transmission directly to EBank,
_________________________ by noon of the next business day after receipt by
you with a copy of the check and all subscription documents to the Corporate
Managing Member, 0 Xxxxxxxx Xxxx Xxxxxx, P. O. Box 409, Westwood, MA 02090-
0409.
(g) . All checks representing said Purchase Price shall be deposited
and disbursed as described in the Prospectus.
SECTION 2. The Issuer represents and warrants that:
(a) All action required to be taken by the Issuer as a condition of the
offer of the Units to qualified purchasers has been, or will be, taken prior
to release of authority to you to offer and sell Units; and, delivery will be
made to the purchasers of Units of an undivided interest in the Issuer as
provided in the Prospectus, together with all reports detailed in the
Prospectus and required by law and such other documents as reasonably may be
required and such purchasers will become holders of the Units offered and
sold by you and entitled to all the benefits provided by the Issuer formation
documents and by the laws of Delaware;
(b) The Issuer is a limited liability company duly and validly organized
and existing under the laws of Delaware and will take those actions necessary
to continue to have full power and authority to conduct the business in which
it intends to engage, and will remain qualified to transact business under
the laws of all jurisdictions in which such qualification is necessary or
advisable to enable it to engage in such business pursuant to the terms of
the LLC Operating Agreement;
(c) The Corporate Managing Member of the Issuer is duly and validly
organized, validly existing and in good standing under the laws of Delaware
and all managing members of the Issuer are members of the NFA and otherwise
fully qualified as commodity pool operators under the CEAct and the Issuer
will continue to have full power and authority to conduct the business in
which it intends to engage, and will remain qualified to transact business
under the laws of all jurisdictions in which such qualification is necessary
or advisable to enable it to engage in such business pursuant to the terms of
the LLC Operating Agreement;
(d) This Agreement has been duly authorized, executed and delivered by
the Corporate Managing Member on behalf of the Issuer and represents a legal,
valid and binding agreement of the Issuer enforceable in accordance with its
terms, subject, as to enforcement, to the availability of equitable remedies
and limitations imposed by bankruptcy, insolvency, reorganization and other
similar laws and related court decisions relating to or affecting creditors'
rights generally;
(e) Upon the execution of a Power of Attorney or the LLC Operating
Agreement by each Subscriber or his or her attorney-in-fact, and the
execution and delivery by the Subscribers of the Subscription Documents and
such additional documents as may be required, upon acceptance by the
Corporate Managing Member on behalf of the Issuer, the Subscriber shall (at
such time as a Closing is held) become a Member of the Company entitled to
all the benefits of Members under the LLC Operating Agreement and all
applicable laws;
(f) The information set forth in the Form S-1 with respect to the
Issuer, and its affiliates, and other matters within the scope of the
Issuer's knowledge are accurate and complete and in full compliance with the
standards imposed by Section 17(a) and other applicable provisions of the
33Act, particularly, neither the Prospectus, any amendment or supplement
will, at any time during the Offering Period, contain an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(g) The execution, delivery, acceptance of the obligations, and the
consummation of the transactions contemplated by any agreement to which the
Issuer is a party, will not constitute a breach of, or default under, any
instrument by which the Issuer is bound, or any order, rule or regulation
(applicable to it) issued by any court or governmental body or administrative
agency having jurisdiction over it;
(h) The Issuer acknowledges that the MHA customer lists, including those
customers it refers to become Members in the Company, are proprietary data
belonging to MHA. Except as required by law and attendant to the permissible
transfer of continuing service fees specifically provided in this agreement,
neither the Issuer, nor any of its Affiliates, will disseminate or disclose
any names of customers referred to it by MHA to any third party;
(i) The accountants who certified the Financial Statements of the
Issuer, the Corporate Managing Member and any other managing members are, and
will continue to be, independent from the Issuer and its Affiliates as
required by the 33Act, SEC regulations and the various applicable Blue Sky
laws;
(j) The Issuer will cooperate with you to qualify the Units for offer
and sale under the applicable Federal securities laws and State Blue Sky laws
of such jurisdictions as you and the Issuer may designate; provided, however,
the Issuer and its Affiliates shall not be obligated to qualify as a
broker/dealer in securities in any jurisdiction;
(k) If any event relating to or affecting the Issuer shall occur during
the Offering Period which requires, in the opinion of legal counsel to the
Issuer, the Form S-1 or Prospectus to be amended or supplement the
registration documents, the Issuer shall forthwith notify you and prepare and
furnish to Issuer's counsel such information and materials as is necessary
for its counsel to prepare an amendment or amendments to, or a supplement or
supplements to, the registration documents which will so amend or supplement
the applicable documents or, in the alternative, suspend all offer and sales
of Units; and
(l) Issuer shall furnish copies of the Prospectus and any such
amendments in sufficient quantity for you to deliver such Prospectus,
amendment or supplement (i) to all offerors then being or thereafter
solicited by you, and (ii) to each person who has subscribed for Units prior
to his receipt of such amendment or supplement but after the event or before
acceptance of the subscription by the Issuer; obtaining from the latter a
confirmation of his subscription as a condition to the acceptance thereof by
the Issuer. For purposes of this subsection, the Issuer will furnish such
additional information as you may, from time to time, reasonably request.
SECTION 3. You represent and warrant that:
(a) You are a corporation, duly organized, validity existing, and in
good standing under the laws of Massachusetts and duly qualified to do
business in all jurisdictions where you are required to qualify and otherwise
have all requisite power and authority to enter into this Agreement and to
carry out the obligations hereunder;
(b) You are a duly registered broker-dealer under Section 15 of the
33Act, as amended, and under the state securities laws in which you will make
offers and are otherwise required to be registered to carry out your
obligations hereunder, and you will take all steps required to remain in good
standing under all such laws and you are, and will remain, a member in good
standing of the NASD;
(c) You will cooperate with the Issuer to ensure that the offer and sale
of Units complies with the requirements of the Federal securities laws and
Blue Sky Laws of the jurisdictions in which Units are offered, and you will
not make an Offer or sale of Units in any jurisdiction in which such Offer or
sale would be unlawful;
(d) You agree to use your best efforts to sell Units and cause them to
be sold in a manner consistent with the terms of this Agreement, the Form S-1
and Prospectus and the rules and regulations of the SEC, NASD, CFTC, NFA and
all applicable state laws, regulations and rules;
(e) You will not make an Offer or sale of Units on the basis of any
communications or documents relating to the Issuer or the Units except for
(i) the Prospectus, including all exhibits thereto, (ii) copies of the
Subscription Agreement in the form attached to the Prospectus (iii) other
information provided by the Issuer at the request of an investor, or (iv)
other documents prepared by the Issuer (and reasonably satisfactory to you)
and delivered to you for use in making an Offer and sale of Units;
(f) You will periodically report to the Issuer the status of the
offering conducted pursuant to this Agreement;
(g) You will comply with the applicable "know your customer" rules of
the NASD and will obtain a fully completed Subscription Agreement from each
purchaser to whom Units are sold;
(h) You will deliver a Prospectus to all prospective purchasers and
obtain a written acknowledgement of such delivery and otherwise comply with
all disclosures required by law;
(i) You will cause all subscription checks to be made payable to "EBank
for the acct. of Prestega" and by noon of the next business day, you will
transmit said checks and the originals of all subscription documents to
EBank. In the event you receive a check which is not payable as provided in
the Prospectus, you shall promptly return such check directly to the
subscriber not later than noon of the next business day following its
receipt;
(j) Upon notice from any source that the Prospectus has become
materially deficient, you will provide immediate notice to the Issuer and
suspend sales until such time as the Prospectus is appropriately amended and
you will deliver the amended Prospectus to all prospective purchasers and to
purchasers who acquired Units prior to the date you suspended sales and you
will take all actions required or deemed by the Issuer as appropriate to
properly resume sales;
(k) Pursuant to this Agreement, you will
(i) Not permit any offer for sale or sell any of the Units in any state
where the Units have not been registered;
(ii) Use your best efforts to insure that you comply with the 33Act and
the CEAct, as amended, all applicable state securities laws, the terms of
this Agreement, and the terms of the Registration Statement and Prospectus;
(iii) Not have any direct interest in the Issuer or remuneration which
is not disclosed in the Prospectus; and
(iv) Promptly pay your registered representatives their contractual
share of the ongoing compensation and other remuneration, if any, for the
Units they sell.
(k) You have conducted your own independent due diligence inquiry and
have concluded that all material facts and risks are adequately and
accurately disclosed in the Prospectus;
(l) You will require all supervisors and registered representatives to
read and thoroughly understand the Prospectus before any sales efforts
commence;
(m) Prior to executing a subscription in the Units, you will inform the
prospective purchaser or cause him to be informed by an investor
representative, of all pertinent facts and risks relating to the non-
liquidity and other characteristics of the Units; and
(n) Your representations, warranties and covenants contained in this
Section 3 will continue in effect throughout and will survive the Offering
Period and termination of this Agreement.
SECTION 4. Deposit of Funds, On Going Service, and Compensation.
(a) After the sale, acceptance by the Issuer, and the Initial Closing of
the Minimum, the Issuer, subject to the continuation of the exception granted
by the staff of the NASD to Rule 2810, will authorize and pay MHA a
continuing service fee of four percent (4%) per year of the Net Asset Value
of each Unit, payable monthly, on Units sold and serviced by registered
representatives or associated persons registered with your firm for so long
as said Units remain invested in the Issuer and your firm is qualified to
receive such payments. Should the NASD revoke the exception to Rule 2810 in
regard to Fund Units, no continuing service fee will be paid to MHA.
(b) Continuing service fees shall be computed as of the last day of each
month (including Units redeemed as of the end of such month); provided,
however, you must be registered with the Commodity Futures Trading Commission
(the "CFTC") as a "futures commission merchant" or "introducing broker" and
you and the associated person who made the sale must be a member in good
standing of the NFA in such capacity or your firm and the registered
representative must be otherwise qualified to receive continuing compensation
on the date such payment is paid for the provision of investor contact and
relationship (the "Ongoing Services") with the Members. Ongoing Services
shall include, but not limited to: (i) inquiring of the Issuer from time to
time, at the request of a Member, the Net Asset Value per Unit; (ii)
inquiring of the Issuer, from time to time, at the request of a Member, the
commodities markets and the performance of the Issuer; (iii) assisting, at
the request of the Issuer or the Member, in the redemption of Interests; and
(iv) providing such other services to the Members or the Issuer may, from
time to time, reasonably request.
1. Ongoing compensation is contingent upon the provision by you, from
time to time, of one or more Registered Representatives who have passed
either the Series 3 National Commodity Futures Examination and registration
as an associated person with your firm or the Series 31 Futures Managed Funds
Examination and also registered with your firm and actual provision by your
firm and such person of the Ongoing Services to the Members for the Units
sold by your firm.
2. You agree to adopt procedures to supervise and monitor the adequacy
of the Ongoing Services provided by Registered Representatives/Associated
Persons.
3. In the event the person who sold the Units is not qualified and you
do not have any other persons qualified to provide the Ongoing Services, the
Issuer will pay your installment compensation at the same rate as in the case
of ongoing compensation, but limited in amount, pursuant to the maximum fees
payable to such unqualified Registered Representative pursuant to all
applicable NASD rules including, but not limited to, your and the Issuer's
determination that such installment compensation is in full compliance with
Rule 2810 of the NASD Conduct Rules for a Direct Participation Program and
Appendix F of the NASD Rules of Fair Practice on aggregate compensation which
may be received by you and such Registered Representative; provided, however,
that no payment is claimed or paid to a Registered Representative who is no
longer with your firm. You agree to adopt procedures to monitor the payment
of installment compensation in order to ensure that such compensation does
not exceed those permitted by NASD rules.
4. Payment of ongoing compensation to you will be made within twenty
(20) days from the end of each month.
(c) If any of your registered representatives shall transfer employment
from you to another CFTC/NFA registered firm, and the Issuer also becomes a
client or grants a Selling Agreement to the transferee firm, you agree,
notwithstanding any contract of employment between you and the representative
to the contrary, to the Issuer making all payments of the continuing
compensation after receipt of notice of the transfer to the transferee firm
for the benefit of the transferred registered representative for all Units in
the Issuer previously sold by that registered representative without any
claim to such payments by you against the Issuer, transferee firm, or the
representative.
SECTION 5. Conduct of Sale.
The Issuer, through is Corporate Managing Member, shall have the sole right
and authority to amend the terms of the sale of Units at anytime. The right
of MHA in regard to any such change is to limited to withdrawal as a
Principal Selling Agent and no other rights shall accrue to MHA as a result
of any such change. Such withdrawal will not terminate or otherwise effect
the obligation of the Issuer to pay continuing service fees for Units sold
and retained by Members MHA placed in the Issuer during the term such Units
are held by such investors and the registered representative remains with
MHA.
SECTION 6. Right to Select Additional Selling Agents.
You are hereby granted the right to solicit and recruit other NASD member
broker/dealers to sell Units upon terms you negotiate with those
broker/dealers. The Issuer may refuse to grant or terminate any additional
broker dealer selling agreement, with or without, cause at any time.
SECTION 7. Indemnification.
(a) The Issuer will indemnify and hold harmless and upon demand, defend
claims, you and each Director, Officer and other persons, if any, who
controls you, from and against any losses, claims, damages or liabilities,
joint or several, to which you, them, or such controlling person may become
subject, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus or
in information furnished pursuant to Section 7(b) hereof, (ii) the omission
or alleged omission from the Prospectus or from information furnished
pursuant to Section 7(b) hereof of a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (iii)
violations by the Issuer of its representations, warranties and agreements
contained in this Agreement; provided, however, that: (a) if the foregoing
indemnity relates to any untrue statement or omission made in the Prospectus
but is eliminated or remedied in an amendment thereof or supplement thereto,
such indemnity shall not inure to the benefit of any person from whom the
person asserting any such loss, claim, damage or liability purchased the
Units after delivery to them of such amendment, (or to the benefit of any
person who controls any such person), or (b) the Issuer or anyone acting on
its behalf, shall not be liable in any such case 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
the Prospectus, in any other offering documentation or in any state Blue Sky
application prepared on behalf of the Issuer or such amendment or supplement
in reliance upon and in conformity with written information furnished to the
Issuer by you or any Additional Selling Agent specifically for use in the
preparation thereof. This indemnification includes the obligation upon the
Issuer to advance such reasonable retainer for any legal or other expenses
reasonably expected to be incurred by you, any Additional Selling Agent, or
such Director, Officer, controlling person in connection with investigating,
defending or preparing to defend any such loss, claim, damage, liability or
action. This indemnity agreement is in addition to any liability that the
Issuer may otherwise have to you, any Additional Selling Agent, or any other
indemnified person pursuant to the applicable securities and other laws.
(b) You will indemnify and hold harmless the Issuer, its Members,
Affiliates, attorneys, and agents and the Corporate Managing Member and its
directors and officers from and against any losses, claims, damages or
liabilities, joint or several, to which they may become subject, under the
33Act, the CEAct, the various state Blue Sky Laws or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any violation which has resulted, directly or
indirectly, from (i) the making of an Offer pr Sale by you or anyone acting
on your behalf, of any interests or securities of the Issuer, in a
jurisdiction which has not been approved by the Issuer or by a person not
registered to sell securities in any jurisdiction; (ii) any untrue statement
or alleged untrue statement or omission or alleged omission of a material
fact in or from the Prospectus, in any other offering documentation or in any
state Blue Sky application prepared on behalf of the Issuer in reliance upon
and in conformity with written information furnished to the Issuer or the
Corporate Managing Member by you specifically for use in the preparation
thereof or (iii) a breach by you of any of your representations, warranties,
covenants or agreements contained in this Agreement or your Consent to
provided for use in connection with the Form S-1.
(c) Within seven days after receipt by an indemnified party under
subsections (a) or (b) above of notice of the commencement of any action for
which indemnification hereunder exists, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under
such subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be
brought against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled
to participate therein, and, to the extent that it shall wish, to assume the
defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified parties for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
SECTION 8. Representations, Warranties, and Agreements to Survive Delivery.
All representations, warranties and agreements contained herein, including
Section 8 hereof, or contained in certificates submitted in regard to the
Form S-1 or pursuant to this Agreement, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of you
or the Issuer or any person on behalf of either of them, and shall survive
the initial and all subsequent Closings.
SECTION 9. Notices.
All communications under this Agreement shall be in writing and shall be sent
by facsimile, delivered, or telegraphed and confirmed, in writing, by first
class mail, postage prepaid, certified, return receipt requested, to the
address for the other party on the first page, as changed, from time to time,
by authorized written notice.
SECTION 10. Termination.
1. You shall have the right to terminate this Agreement, except for the
indemnification provisions contained herein, by giving notice, as specified
herein, at any time, if:
(a) The Issuer shall have failed, refused, or been unable to perform any
of its obligations hereunder;
(b) Any other conditions of your obligations hereunder which are
required to be fulfilled by the Issuer that are not fulfilled; or
(c) There has occurred an event materially and adversely affecting the
value of the Units.
If you elect to terminate this Agreement as provided herein, you shall
promptly notify the Issuer by telephone, telecopier or telegram, and shall
confirm the termination by letter within ten (10) days after any verbal
notification.
2. The Issuer shall have the right to terminate this agreement without
notice at anytime should you breach any term of this Agreement including, but
not limited to, failure to properly present the offering as described in the
Prospectus.
3. Either party may terminate this Agreement, at any time, with or without
cause, upon twenty (20) days notice to the other.
4. In the event of termination for any reason other than a breach of this
Agreement, payment of all continuing service fees earned, including for those
sales held in escrow and pending acceptance by the Managing Member, will be
paid upon completion of the sale and maintenance of the investment in the
Issuer subject to Section 4 above. In the event you breach any provision of
this Agreement, upon termination, you will receive no further payments under
this Agreement.
SECTION 11. Default.
Upon the default of any provision by either party to this agreement, the non-
defaulting party shall be entitled to all remedies available at law and in
equity including, but not limited to, payment of their attorney fees and
costs attendant to the enforcement or defense of any action.
SECTION 12. Arbitration.
Any dispute or controversy of any kind or nature, relating to this Agreement
or the breach or performance thereof, that shall arise between the parties
hereto, shall be settled and determined by binding arbitration in the State
of Massachusetts by a single arbitrator selected by the rules and pursuant to
the provisions of the American Arbitration Association and not the NASD or
the NFA. All legal fees and costs of arbitration shall be borne as provided
in this Agreement. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction. The arbitrator shall be entitled
to compel specific performance and/or injunctive relief by the parties of
their duties and obligations under this Agreement.
SECTION 13. Independent Contractors.
All parties are independent contractors in regard to the tasks assumed by
them. None has the authority to bind any other party to this agreement to
any contract or any other responsibility. How the Issuer, the Corporate
Managing Member, and MHA conduct their business is entirely within that
person's sole control and each looks to the other for results only without
any duty to supervise the activities of any other party to this Agreement.
SECTION 14. No Assignment.
This Agreement is for personal services that require licenses and a high
degree of skill that cannot be delegated or assigned by any party to this
Agreement without the prior written consent or waiver of all other parties to
this Agreement.
SECTION 15. Unenforceable Provisions.
If any portion of this Agreement shall be determined to be void or
unenforceable, the balance thereof shall remain in full effect.
SECTION 16. Interpretation.
Any words used herein shall be interpreted as singular or plural, and any
pronouns used herein shall be interpreted as masculine, feminine or neuter as
the context so requires.
SECTION 17. Construction.
This Agreement shall be construed according to the laws of the Commonwealth
of Massachusetts, regardless of where it is signed.
SECTION 18. Descriptive Headings.
The descriptive paragraph headings contained herein are for convenience only
and are not intended to include or conclusively define all the subject matter
in the paragraphs accompanying such headings and, accordingly, which headings
should not be resorted to for interpretation of this Agreement.
SECTION 19. Amendments and Supplements.
This Agreement can be amended, modified or supplemented only by a written
instrument signed by the parties hereto. Any purported oral amendment,
modification or supplement shall be void.
SECTION 20. Entire Agreement.
This Agreement constitutes the entire agreement between the parties hereto,
supersedes all prior written and verbal agreements and none of the parties
shall be bound by any promises, representations or agreements except as are
herein expressly set forth in this Agreement or subsequent written agreement
signed by both parties.
SECTION 21. Definitions.
As used in this Agreement, the following words have the indicated meanings:
Closing means the completion of the Offering as to the sale of the Minimum or
any subsequent sales of Units, whether prior to, or at the end of, the
Offering Period or any extension thereof.
Offer means an offer, offer for sale, a solicitation of an offer to subscribe
for or buy, or a sale.
Offering Periods means the periods commencing on the effective date of the
Prospectus or any subsequent amendments and ending by the Issuer as provided
in the Registration Statement.
Purchase Price means the price at which the Units are offered for sale, which
shall be $1,000 per Unit prior to the break of Escrow, and the Net Asset
Value at the end of each month after the break of Escrow. There are no sales
commissions paid on the sale of Units.
If the foregoing is acceptable to you, please sign and return three (3)
copies of this Agreement to counsel for the Issuer. Upon receipt, the Issuer
will sign and return a copy to you and deposit a copy with securities counsel
to be filed with the Form S-1 to be filed with the SEC.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ISSUER: PRINCIPAL SELLING AGENT:
Prestiga Fund, LLC MHA Financial Corp
By: Prestiga Capital Management, Inc.
Corporate Managing Member
By: _________________________________ By: ___________________________
Xxxxx Worth, President C. Xxxxxxx Xxxxxxx, President
EXHIBIT A TO PRESTIGA - MHA AGREEMENT
NAME OF TOTAL EST AMT STATE AMT
REGISTERED REP TO BE SOLD
________________________ $ _______________ _______ $_________
Additional names subject to the approval of the Issuer and MHA
