Exhibit (h)
PLACEMENT AGENCY AGREEMENT
This Agreement is made and entered into as of May__, 2004 by and
between Blue Rock Advisors, Inc., a Minnesota corporation ("Blue Rock"), Blue
Rock Market Neutral Fund, LLC (the "Fund"), a limited liability company
organized under the laws of the State of Delaware and registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), for which Blue Rock
serves as an investment adviser and Xxxxxxxxx & Co. Ltd.("Xxxxxxxxx").
RECITALS
WHEREAS, Blue Rock wishes to engage Xxxxxxxxx to assist Blue Rock in
the placement of investment interests in the Fund; and
WHEREAS, Xxxxxxxxx desires to assist Blue Rock in the placement of
investment interests in the Fund, subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the agreements
contained in this Agreement, the parties agree as follows:
ARTICLE I
SOLICITATION BY XXXXXXXXX
Section 1.01 SOLICITATION OF POTENTIAL INVESTORS. Xxxxxxxxx hereby
agrees to solicit on the Fund's behalf eligible individuals, institutions and
other persons for potential participation as investors in the Fund ("Potential
Investors").
Section 1.02 COMPLIANCE WITH INSTRUCTIONS AND APPLICABLE LAW, RULES
AND REGULATIONS. Xxxxxxxxx agrees to perform Xxxxxxxxx'x duties under this
Agreement in a manner consistent with the instructions of Blue Rock and the
provisions of all applicable laws, rules and regulations. In particular,
Xxxxxxxxx agrees that it (and any person acting on its behalf) will conduct all
solicitation activity in compliance with the requirements of the 1940 Act, the
Investment Advisers Act of 1940, as amended, the Employment Retirement Income
Security Act of 1974 ("ERISA"), the Securities Act of 1933 (the "Securities
Act"), as amended, the Securities Exchange Act of 1934, as amended, and the
rules and regulations issued by the Securities and Exchange Commission (the
"SEC"), the Department of Labor and other regulators under the foregoing laws
(including Rule 506 of Regulation D under the Securities Act and including the
prohibition on general solicitation contained in Regulation D), the rules,
regulations and requirements of the National Association of Securities Dealers
Inc. (the "NASD"), and all applicable state laws, rules and regulations
governing the offer and sale of securities.
Section 1.03 USE OF THE FUND'S DOCUMENTS. Xxxxxxxxx agrees to use
only those materials with respect to the Fund as have been provided by Blue Rock
for such purpose or as have been expressly approved in writing in advance by
Blue Rock for such purpose, and Xxxxxxxxx agrees that it shall make no
representations regarding the Fund other than as set forth in those materials.
Except as authorized by Blue Rock, Xxxxxxxxx shall not itself provide any
Potential Investor with a copy of the offering memorandum or any other materials
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relating to the Fund (the "Offering Documents"). If Xxxxxxxxx wishes a Potential
Investor to receive a copy of the Fund's Offering Documents, it may request Blue
Rock to furnish the Potential Investor with copies. In its discretion, Blue Rock
may entrust such materials to Xxxxxxxxx to furnish to the Potential Investor.
The Fund will furnish Xxxxxxxxx with such documents as Xxxxxxxxx may reasonably
require, from time to time, for the purpose of enabling Xxxxxxxxx to pass upon
the issuance and sale of investment interests as contemplated in this Agreement,
or in order to evidence the accuracy of any of the representations and
warranties, or the fulfillment of any of the conditions contained in this
Agreement; and all actions taken by the Fund in connection with the issuance and
sale of investment interests as contemplated in this Agreement will be
satisfactory in form and substance to Xxxxxxxxx.
Section 1.04 NO RESPONSIBILITY FOR FUND RECORDKEEPING OR ACCOUNTING
BY XXXXXXXXX. Xxxxxxxxx will not at any time be responsible for performing
recordkeeping or accounting services with respect to the Fund, except as may be
required in connection with a Potential Investor's investment in the Fund or as
may otherwise be required by law. The Fund shall promptly inform Xxxxxxxxx of
the Fund's net assets (and/or in certain instances estimated net asset values)
as soon as reasonably practicable following their calculation at such times as
Xxxxxxxxx reasonably requests. Xxxxxxxxx is authorized to communicate such
calculations to Potential Investors. In the event that estimated net asset
values are provided in lieu of net asset values, the Fund shall provide
Xxxxxxxxx with information sufficient to permit Xxxxxxxxx to make appropriate
disclosures to the Potential Investors.
ARTICLE II
NON-EXCLUSIVE AGREEMENT
The parties agree that this Agreement is non-exclusive as to each
party. Xxxxxxxxx shall be free to render services to other persons that are the
same as or similar to the services Xxxxxxxxx renders under this Agreement to
Blue Rock and the Fund, and Blue Rock and the Fund shall be free to engage other
persons to provide services that are the same as or similar to the services Blue
Rock and the Fund are engaging Xxxxxxxxx to perform under this Agreement.
ARTICLE III
COMPENSATION OF XXXXXXXXX
Section 3.01 COMPENSATION. Xxxxxxxxx shall be entitled to a fee only
with respect to Potential Investors that actually become investors in the Fund
as a result of Xxxxxxxxx'x solicitation of such Potential Investors ("Covered
Investors"). As compensation for successful solicitations of Covered Investors,
the Blue Rock may pay Xxxxxxxxx a fee that will be based upon the Management Fee
(as defined in the Offering Documents) attributable to Covered Investors'
investments in the Fund. These payments shall not exceed one third of the
Management Fee earned and attributable to such investments. The Fund will not
make any payments to Xxxxxxxxx. Except as may otherwise be agreed to by Blue
Rock, Blue Rock shall be responsible for the payment of all costs and expenses
incurred by Xxxxxxxxx in connection with the performance of its obligations
under this Agreement, including the costs associated with the preparation,
printing and distribution of the Fund's Offering Documents or any sales
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materials and Xxxxxxxxx'x reasonable legal expenses in connection with this
Agreement and performance of its obligations under this Agreement.
Section 3.02 TERMINATION OF THE BLUE ROCK'S OBLIGATION TO PAY
XXXXXXXXX'X FEE. Blue Rock's obligation to pay Xxxxxxxxx'x fee with respect to a
Covered Investor in the Fund shall terminate upon the Covered Investor ceasing
to be an investor in the Fund.
Section 3.03 LIMITATIONS ON PAYMENT OF XXXXXXXXX'X FEE. Xxxxxxxxx'x
fee with respect to a Covered Investor shall be paid only if Xxxxxxxxx has
complied fully with all the requirements of this Agreement and the payment of
Xxxxxxxxx'x fee is lawful under applicable federal and state law, rules and
regulations, including the rules, regulations and requirements of the NASD.
Section 3.04 XXXXXXXXX'X FEE IS SOLE COMPENSATION TO XXXXXXXXX.
Xxxxxxxxx shall receive no other compensation (i.e., other than the fee
described in Section 3.01) from any Covered Investor or any other person
relating to its services under this Agreement.
Section 3.05 COMPENSATION TO REGISTERED REPRESENTATIVES OF
XXXXXXXXX. To the extent consistent with applicable NASD rules, regulations and
requirements and applicable state laws, rules and regulations, Xxxxxxxxx shall
be permitted to share all or a portion of the compensation received by it
pursuant to Section 3.01 of this Agreement with registered representatives of
Xxxxxxxxx. Neither Blue Rock nor the Fund shall have any obligation to pay
compensation directly to registered representatives of Xxxxxxxxx.
ARTICLE IV
INDEPENDENT CONTRACTOR
The parties hereby agree that Xxxxxxxxx is an independent contractor
and that nothing contained in this Agreement shall be construed to create any
joint venture, partnership, employer-employee or any other type of relationship
between the Fund or Blue Rock and Xxxxxxxxx.
ARTICLE V
TERMINATION OF AGREEMENT
This Agreement may be terminated by any party upon providing the
other parties with thirty (30) days' prior written notice.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01 XXXXXXXXX'X REPRESENTATIONS AND WARRANTIES. Xxxxxxxxx
hereby represents and warrants to each of the Fund and Blue Rock as follows:
(a) Xxxxxxxxx will not offer or solicit any offers to subscribe
for or purchase interests in the Fund, or otherwise negotiate with any person
with respect to a subscription in the Fund, or sell interests in the Fund on the
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basis of any solicitation material other than the Offering Documents, as amended
or supplemented, and such other material as may be provided by the Fund or Blue
Rock for such purpose;
(b) Xxxxxxxxx is a securities broker-dealer duly registered with
the SEC and the NASD, and Xxxxxxxxx and its agents are or will be duly
registered in the states in which Potential Investors are solicited and shall
comply with the provisions of all applicable federal and state laws, rules and
regulations and all applicable rules, regulations and requirements of the NASD;
(c) Xxxxxxxxx shall not appoint subagents or selected dealers in
connection with this Agreement;
(d) Xxxxxxxxx shall not use any form of general solicitation or
general advertising, as such terms are used in Rule 502(c) under the Securities
Act (including, but not limited to, the use of any notice, article, circular,
advertisement, letter or similar written or graphic communication, or any
seminar or meeting), in connection with any solicitation under this Agreement or
the offer or sale of interests in the Fund;
(e) The offers and sales of investment interests in the Fund by
Xxxxxxxxx are to be effected pursuant to the exemption from the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to Section 4(2) thereof and Regulation D under the Securities Act;
(f) Offers and sales of investment interests in the Fund by
Xxxxxxxxx will be made only in compliance with Regulation D under the Securities
Act and only to investors that qualify as "accredited investors," as defined in
Rule 501(a) under the Securities Act;
(g) Sales of investment interests in the Fund by Xxxxxxxxx will
be made only to investors that qualify as "qualified clients," as defined in
Rule 205-3 under the Investment Advisers Act of 1940, as amended;
(h) Xxxxxxxxx will not offer or sell any investment interests in
the Fund in any state or jurisdiction, or to any Potential Investor located in
any state or jurisdiction, where such interests have not been registered or
qualified for offer and sale under applicable state securities laws unless such
interests are exempt from the registration or qualification requirements of such
laws;
(i) If the Potential Investor is an employee benefit plan subject
to ERISA or a governmental plan subject to the Federal Employees' Retirement
System Act of 1986 ("FERSA"), Xxxxxxxxx is not a "fiduciary" within the meaning
of ERISA or FERSA as to such Potential Investor;
(j) Xxxxxxxxx'x activities pursuant to this Agreement will not
violate any law, regulation or ethical or fiduciary obligation to which it is
subject;
(k) Xxxxxxxxx has full power, right and authority to enter into
and perform its obligations under this Agreement; and
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(l) Xxxxxxxxx and each person, including any registered
representative of Xxxxxxxxx, except as limited by Section 6.02 below, who
performs or will perform services for Xxxxxxxxx under this Agreement (each an
"Employee") has in effect all registrations, licenses, bonds and approvals
necessary for Xxxxxxxxx to enter into this Agreement and for Xxxxxxxxx and each
Employee to perform all of its, his or her obligations under this Agreement.
Section 6.02 LIMITATION ON XXXXXXXXX'X REPRESENTATION AND
WARRANTIES. Notwithstanding the representations and warranties contained in
Section 6.01 hereof, Xxxxxxxxx makes no representation or warranty to the Fund
or Blue Rock with respect to any conduct, act, omission or other activity
related in any manner to Xxxxxxxxx'x obligations under this Agreement by Xxxxx
Xxxxxx Gideon, Xxxxxx X. Xxxxxxxxx or Xxxx Xxxxx or persons acting under their
direct supervision.
Section 6.03 THE FUND'S AND BLUE ROCK'S REPRESENTATIONS AND
WARRANTIES. The Fund and Blue Rock, severally and not jointly, hereby represents
and warrants to Xxxxxxxxx as follows:
(a) The Fund and Blue Rock have been duly formed under the laws
of the State of Delaware and Minnesota respectively, and each have the power and
authority to enter into and perform its obligations under this Agreement, effect
the offering of the Fund's investment interests and each conduct its business as
described in the Offering Documents. All necessary filings, consents and other
actions necessary to qualify the offering of investment interests in each
applicable U.S. state and to conduct the business of the Fund or Blue Rock as
described in the Offering Documents have been, or will timely be, made or taken.
(b) The Fund or Blue Rock, as the case may be, has in effect all
registrations, licenses, bonds and approvals necessary for entering into this
Agreement and performing all of its obligations. The Fund intends to engage in
business as a closed-end, non-diversified management investment company and is
registered as such under the 1940 Act.
(c) The sale of investment interests in the Fund and the
execution, delivery and performance of this Agreement, and the Fund's conduct of
business as described in the Offering Documents will not result in the violation
of any applicable law, regulation, or ethical or fiduciary obligation required
by State law or the SEC.
(d) The Fund will use the proceeds from the sale of investment
interests in the Fund for the purposes set forth in the Offering Documents.
(e) Investment interests in the Fund to be or which may be issued
by the Fund have been duly authorized for issuance and sale and, when issued and
delivered by the Fund, will conform in all material respects to all statements
relating thereto contained in the Offering Documents.
(f) The Offering Documents and any selling materials prepared or
approved by the Fund do not contain any untrue statement of material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. If, at any time after the commencement of the
offering of investment interests in the Fund and prior to the termination of
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such offering, an event occurs that in the opinion of counsel to the Fund or
Blue Rock materially affects the Fund and that should be set forth in an
amendment or supplement to the Offering Documents in order to make the
statements in the Offering Documents not misleading in light of the
circumstances under which they are made, the Fund will notify Xxxxxxxxx as
promptly as practicable of the occurrence of such event and prepare and furnish
to Xxxxxxxxx copies of an amendment or supplement to the Offering Documents, in
such reasonable quantities as it may request, in order that the Offering
Documents will not contain any untrue statement of any material fact or omit to
state a material fact that in the opinion of such counsel is necessary to make
the statements in the Offering Documents not misleading in light of the
circumstances under which they are made.
(g) This Agreement has been duly authorized, executed and
delivered by the Fund and Blue Rock and, upon execution by Xxxxxxxxx, will
constitute a valid and binding agreement of the Fund and Blue Rock.
(h) Upon Xxxxxxxxx'x request, the Fund and Blue Rock will make
available to Xxxxxxxxx any information pertaining to the Fund or Blue Rock
reasonably requested by any Potential Investor (to the extent permitted by law).
(i) The Fund and Blue Rock shall not use any form of general
solicitation or general advertising, as such terms are used in Rule 502(c) under
the Securities Act (including, but not limited to, the use of any notice,
article, circular, advertisement, letter or similar written or graphic
communication, or any seminar or meeting), in connection with any solicitation
under this Agreement or the offer or sale of interests in the Fund.
(j) The offers and sales of investment interests in the Fund are
to be effected pursuant to the exemption from the registration requirements of
the Securities Act of 1933, as amended (the "Securities Act"), pursuant to
Section 4(2) thereof and Regulation D under the Securities Act.
(k) Offers and sales of investment interests in the Fund will be
made only in compliance with Regulation D under the Securities Act and only to
investors that qualify as "accredited investors," as defined in Rule 501(a)
under the Securities Act.
(l) Sales of investment interests in the Fund will be made only
to investors that qualify as "qualified clients," as defined in Rule 205-3 under
the Investment Advisers Act of 1940, as amended.
(m) No offer or sale of any investment interests in the Fund
shall be made in any state or jurisdiction, or to any Potential Investor located
in any state or jurisdiction, where such interests have not been registered or
qualified for offer and sale under applicable state securities laws unless such
interests are exempt from the registration or qualification requirements of such
laws.
The foregoing covenants and representations shall be true and correct as of the
date hereof and for so long as the Agreement remains in effect or Covered
Investors are invested in the Fund.
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Section 6.04 DUTY TO ADVISE OF ANY CHANGES IN REPRESENTATIONS AND
WARRANTIES. Each party agrees to immediately inform the others in writing if any
of its representations and warranties set forth in this Article VI becomes
untrue at any time.
ARTICLE VII
INDEMNIFICATION
Section 7.01 THE FUND'S AND BLUE ROCK'S INDEMNIFICATION OF
XXXXXXXXX. The Fund and Blue Rock agree, jointly and severally, to indemnify,
defend and hold Xxxxxxxxx and its affiliates and their respective officers,
directors, employees, agents, representatives and controlling persons the
("Xxxxxxxxx Indemnitees") free and harmless from and against any and all losses,
claims, damages, obligations, penalties, judgments, awards, costs,
disbursements, demands, liabilities (including amounts paid in settlement) and
reasonable legal and other expenses (including the cost of investigation or
defending such claims incurred in connection therewith) (collectively, "Losses")
which such person may incur but only to the extent that such Losses arise out of
or are based upon: (i) any untrue statement of a material fact in the Offering
Documents or omission or to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (except to the extent
such untrue statement or omission was made in reliance on and in conformity with
information provided in writing to the Fund or Blue Rock by Xxxxxxxxx); (ii) any
material breach by the Fund or Blue Rock of any provision of this Agreement,
including any representation, warranty, covenant or agreement set forth herein;
(iii) any action by Xxxxxxxxx performed as requested by Blue Rock or the Fund or
with the Fund or Blue Rock's specific consent; (iv) any material violation of
any applicable law or regulation by the Fund or Blue Rock or its officers,
directors, employee, agents (other than Xxxxxxxxx), or representatives; or (v)
any actions of the Fund or Blue Rock and its officers, directors, employees and
agents (other than Xxxxxxxxx) relating to the sale of investment interests in
the Fund or Blue Rock; or (vi) the actions of the Fund or Blue Rock and its
employees and agents (other than Xxxxxxxxx) relating to the Fund's processing of
investments by Covered Investors and the servicing of customer accounts;
provided, however, that in no event shall anything contained herein be so
construed as to provide indemnity to or protect the Xxxxxxxxx Indemnitees
against any liability to which a Xxxxxxxxx Indemnitee would otherwise be subject
by reason of its negligence, willful misfeasance or bad faith or reckless
disregard of its obligations and duties under this Agreement, or violation of
any applicable law by a Xxxxxxxxx Indemnitee in connection with the distribution
of investment interests in the Fund. The Fund's and Blue Rock's agreement to
indemnify Xxxxxxxxx, and other indemnities as aforesaid is expressly conditional
upon the Fund or Blue Rock being promptly notified of any action brought against
Xxxxxxxxx, such notification to be given by letter or facsimile addressed to the
Fund or Blue Rock at the address set forth in this Agreement or other address
communicated to Xxxxxxxxx in writing (but only to the extent that the Fund or
Blue Rock is prejudiced by the failure to give prompt notice), and further
conditional upon Xxxxxxxxx reasonably cooperating with the Fund or Blue Rock
with respect to any claim or demand for which Xxxxxxxxx seeks indemnity and
promptly defending such claims if the Fund or Blue Rock reasonably requests. In
addition, any determination by the Fund under this Section 7.01 will be made in
accordance with Section 17 of the 1940 Act. The Fund or Blue Rock agree to
promptly notify Xxxxxxxxx of the commencement of any litigation proceeding
against the Fund or Blue Rock or any of its officers or directors in connection
with the issue and sale of any interests.
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Section 7.02 XXXXXXXXX'X INDEMNIFICATION OF THE FUND AND BLUE ROCK.
Xxxxxxxxx agrees to indemnify, defend and hold the Fund and Blue Rock and each
of their affiliates, and their respective officers, directors, employees,
agents, representatives and controlling persons, except Xx. Xxxxxx, Xx.
Xxxxxxxxx and Xx. Xxxxx and any person acting under their direct supervision,
free and harmless from and against any and all losses, claims, damages,
obligations, penalties, judgments, awards, costs, disbursements, demands,
liabilities (including amounts paid in settlement) and reasonable legal and
other expenses (including the cost of investigating or defending such claims
incurred in connection therewith) (collectively "Losses") which such party may
incur, but only to the extent that such Losses incurred by such party shall
arise out of or be based upon Xxxxxxxxx'x gross negligence, willful misfeasance,
bad faith or reckless disregard of its obligations and duties under this
Agreement or violation by Xxxxxxxxx of any applicable law in connection with the
distribution of investment interests in the Fund. Xxxxxxxxx'x agreement to
indemnify such party as aforesaid is expressly conditional upon Xxxxxxxxx being
promptly notified of any action brought against such party, such notification to
be given by letter or facsimile addressed to Xxxxxxxxx at its address set forth
herein or other address communicated to the Fund in writing (but only to the
extent that Xxxxxxxxx is prejudiced by the failure to give prompt notice), and
further conditional upon such party reasonably cooperating with Xxxxxxxxx with
respect to any claim or demand for which any of such party seeks indemnity and
promptly defendant such claims if Xxxxxxxxx reasonably requests.
Section 7.03 LIMITATION ON XXXXXXXXX'X INDEMNIFICATION.
(a) Notwithstanding Xxxxxxxxx'x indemnification obligations set
forth in Section 7.02 hereof, Xxxxxxxxx shall not be obligated to defend or
indemnify the Fund or Blue Rock to the extent any Losses are directly or
indirectly attributable to acts or omissions of Xx. Xxxxxx, Xx. Xxxxxxxxx or Xx.
Xxxxx or persons acting under their direct supervision.
(b) The maximum amount of Xxxxxxxxx'x indemnification obligation
for Losses of the Fund or Blue Rock in accordance with Section 7.02 hereof shall
be limited to the aggregate amount of compensation received by Xxxxxxxxx
pursuant to Section 3.01 hereof less any compensation paid by Xxxxxxxxx to
representatives that are also associated persons of Blue Rock.
(c) Notwithstanding anything else in this Section 7.03, Blue Rock
shall indemnify the Fund to the extent any indemnification of Losses by
Xxxxxxxxx under Section 7.02 is limited by virtue of Section 7.03(a) or (b)
hereof.
Section 7.04 AVAILABILITY OF INDEMNIFICATION. If recovery is not
available under the foregoing indemnification provisions of this Article VII for
any reason other than as specified therein, the parties entitled to
indemnification by the terms thereof shall be entitled to contribution toward
the amount paid or payable by such indemnified party as a result of Losses
referred to in Section 7.01 or 7.02 above. In determining the amount of
contribution to which the respective parties are entitled, there shall be
considered the relative benefits received by each party from the offering of
investment interests in the Fund, the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was asserted,
the opportunity to correct and prevent any untrue statement or omission, and any
other equitable considerations appropriate under the circumstance.
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Section 7.05 NOTICE. Promptly after receipt by either party of
notice of any claim or the commencement of any action or proceedings with
respect to which such party may be entitled to be indemnified hereunder, the
party claiming a right to indemnification (the "Indemnified Party") will notify
the other party (the "Indemnifying Party") in writing of such claim or the
commencement of such action or proceedings, and the Indemnifying Party will
assume the defense of such action or proceeding and will employ counsel
satisfactory to the Indemnified Party and will pay the fees and expenses of such
counsel as incurred. Notwithstanding the preceding sentence, the Indemnified
Party will be entitled to employ counsel separate from the Indemnifying Party's
counsel and from any other party in such action if the Indemnified Party
determines that a conflict of interest exists which makes counsel chosen by the
Indemnifying Party not advisable or if the Indemnified Party reasonably
determines that the Indemnifying Party's assumption of the defense does not
adequately represent the Indemnified Party's interest. In such event the
Indemnifying Party will pay the fees and disbursements of such separate counsel,
but in no event shall the Indemnifying Party be liable for the fees and expenses
of more than one counsel (in addition to local counsel) for the Indemnified
Party in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
Section 7.06 SETTLEMENT. The Indemnifying Party agrees that it will
not, without the prior written consent of the Indemnified Party, settle any
pending or threatened claim or proceeding related to or arising out of such
engagement or transactions or conduct in connection therewith (whether or not
the Indemnified Party is a party to such claim or proceeding) unless such
settlement includes a provision unconditionally releasing the Indemnified Party
from and holding the Indemnified Party harmless against all liability in respect
of claims by any releasing party related to or arising out of such engagement or
any transaction or conduct in connection therewith. The Indemnifying Party will
also promptly reimburse the Indemnified Party for all reasonable expenses
(including counsel fees) as they are incurred by the Indemnified Party in
connection with investigating, preparing or defending, or providing evidence in,
any pending or threatened claim or proceeding in respect of which
indemnification may be sought hereunder (whether or not the Indemnified Party is
a party to such claim or proceeding) or in enforcing this Agreement.
Section 7.07 SURVIVAL. The provisions of this Article VII shall
survive termination of this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 COMPLIANCE BY EMPLOYEES. Xxxxxxxxx agrees to cause each
Employee to comply with all of Xxxxxxxxx'x obligations under this Agreement and
to adhere to all the provisions of this Agreement as if the Employee himself or
herself (rather than Xxxxxxxxx) were the party to this Agreement.
Section 8.02 NOTICES. All notices and demands required or permitted
under this Agreement shall be in writing and may be sent by U.S. mail, postage
prepaid, overnight air courier or personal delivery. Until otherwise specified
by notice in writing, the address for such notices shall be:
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If to Xxxxxxxxx: _______________________________
_______________________________
_______________________________
_______________________________
_______________________________
Attn: _________________________
If to Blue Rock or Blue Rock Advisors, Inc.
the Fund: 0000 XXX Xxxxxx
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Section 8.03 SEVERABILITY. The unenforceability or invalidity of any
provision of this Agreement shall not affect the enforceability or validity of
any other provision.
Section 8.04 COUNTERPARTS. This Agreement may be executed in one
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 8.05 GOVERNING LAW. This Agreement shall be construed and
governed in accordance with the internal laws of the State of Minnesota and the
provisions of the 1940 Act (which provisions shall control in the event of any
conflict between the laws of the State of Minnesota and the 1940 Act).
Section 8.06 HEADINGS. The subject headings of Articles and Sections
of this Agreement are included for purposes of convenience only and shall not
affect the construction or interpretation of any of its provisions.
Section 8.07 THIRD PARTIES. Nothing expressed or implied in this
Agreement is intended or shall be construed to confer upon or give to any person
or entity, other than the parties to this Agreement, any right to remedies under
or by reason of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
XXXXXXXXX & CO. LTD.
By:
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Name:
Title:
BLUE ROCK ADVISORS, INC.,
By:
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Name:
Title:
BLUE ROCK MARKET NEUTRAL FUND, LLC
By:
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Name:
Title:
