SELLING AGREEMENT
FOR
BACAP ALTERNATIVE MULTI-STRATEGY FUND, LLC
Dated as of: 12-14, 2003
From: Banc of America Investment Services, Inc.
To: BACAP Distributors, LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Gentlemen:
We desire to enter into an agreement with you for making available to
our customers limited liability company interests ("Interests") in BACAP
Alternative Multi-Strategy Fund, LLC, a registered, closed-end management
investment company (the "Fund"), for which you are the Distributor, and which
Interests are being offered to the public at the current offering price of the
Fund (the "Offering"). Upon acceptance of this Agreement by you, we understand
that we may offer Interests and act as authorized agent for our customers'
purchase of Interests through you, subject to all of the terms and conditions of
the Offering and this Agreement and to your right, without notice, to suspend or
terminate the Offering. Accordingly, we agree to the following:
1. Interests will be made available at the current offering price in
effect at the time the order of Interests is confirmed and accepted by the Fund
or its agent. All purchase orders (which shall for purposes of this Agreement
include both orders of your customers to make initial investments in the Fund as
well as customer orders to make additional investments), and applications of our
customers submitted by us, are subject to acceptance or rejection in your sole
discretion.
2. We represent and warrant to you that we are registered as a broker
with the Securities and Exchange Commission ("SEC") under the Securities
Exchange Act of 1934 (the "1934 Act") and a member in good standing of the
National Association of Securities Dealers, Inc or we are not required to be
registered as a broker. We agree to abide by the provisions of the Investment
Company Act of 1940, as amended (the "1940 Act"), the Securities Act of 1933, as
amended, and the 1934 Act and all applicable rules and regulations of the SEC.
We further agree to comply with all other applicable state and Federal laws and
the rules and regulations of authorized regulatory agencies. We agree that we
will not offer Interests in any state or other jurisdiction where they have not
been qualified for sale or if you have not advised us in advance that such sale
is exempt from such qualification requirements. You will inform us of the
jurisdictions in which this fund is qualified for sale.
3. We will make available to our customers Interests only in
accordance with the terms and conditions of the Fund's then-current Prospectus
and Statement of Additional Information (collectively referred to as the
"Prospectus") and we will make no representations about Interests not included
in the Prospectus or in any authorized supplemental material supplied by you, or
authorized by you in writing for use. We will not use any other Offering
materials for the Fund without your written consent. We will use our best
efforts in the offer of Interests and agree to be responsible for the proper
instruction and training of all appropriate personnel in this area employed by
us, in order that Interests will be offered in accordance with the terms and
conditions of this Agreement and all applicable laws, rules and regulations. We
represent that in transmitting a purchase order for Interests that the investor
for whom we transmit the purchase order has signed the investor application for
the Fund and that we have determined that the Interest is a suitable investment
for the investor. We further represent that we will forward purchase orders to
you only on behalf of investors from whom we have received duly executed
investor certifications in the form set forth in Appendix A to the Prospectus
(the "Investor Certification") and who we reasonably believe meet all
requirements to be eligible to purchase Interests at the time the purchase order
is submitted.
4. (a) We agree to hold you harmless and indemnify you, your
affiliates, the Fund, and your and their respective officers, directors,
trustees, managers and employees (collectively, "Distributor Related Indemnified
Persons"), to the fullest extent permitted by law, from and against any or all
losses or liabilities incurred by Distributor Related Indemnified Persons based
upon, relating to or arising out of the violation of any law, rule or
regulation, or of any provision of this Agreement, by us or by any of our
officers, directors, employees or agents; provided that we shall have no
liability and shall not be required to provide indemnification under this
provision for any losses or liabilities that result from the willful misconduct,
bad faith or negligence of, or the breach of this Agreement by, any Distributor
Related Indemnified Person. Furthermore, we agree to indemnify you, your
affiliates and the Fund against any and all claims, demands, controversies,
actions, losses, damages, liabilities, expenses, arbitrations, complaints or
investigations, including without limitation, reasonable attorneys' fees and
court costs that are the result of or arise directly or indirectly, in whole or
in part, from you, your affiliates or the Fund acting upon instructions for the
purchase or repurchase of Interests received through your manual or automated
phone system or the Fund/SERV program of National Securities Clearing
Corporation; provided such loss, liability or damages are not the result of the
gross negligence, recklessness or intentional misconduct of you, your affiliates
or the Fund. In connection with all purchase orders or the submission to you of
tenders of Interests in connection with any offers by the Fund to repurchase
Interests ("Repurchase Offers"), we are acting as agent for our customers and
each transaction is for the account of our customer and not for our own account.
Termination or cancellation of this Agreement shall not relieve us from the
provisions of this paragraph as to transactions or occurrences arising prior to
such termination. You agree that we shall have no liability to you nor shall we
indemnify you for amounts of loss or liability paid in settlement of claims
without our consent, unless our consent is unreasonably withheld.
(b) You agree to hold us harmless and indemnify us, our officers,
directors, employees and agents (collectively, "Selling Agent Related
Indemnified Persons"), to the fullest extent permitted by law, from and against
any and all losses or liabilities incurred by Selling Agent Related Indemnified
Persons based upon, relating to or arising out of (i) the violation of any law,
rule or regulation, or of any provision of this Agreement, by you or by any of
your officers, directors, employees or agents or (ii) any untrue statement of a
material fact contained in the Fund's Prospectus or in any marketing materials
provided by you, or any omission to state a material fact required to be stated
in the Fund's Prospectus or such marketing materials or necessary to make the
statements therein not misleading; provided that you shall have no liability and
shall not be required to provide indemnification under this provision for any
losses or liabilities that result from the willful misconduct, bad faith or
negligence of, or the breach of this Agreement by, any Selling Agent Related
Indemnified Person. We agree that you shall have no liability to us nor shall
you indemnify us for amounts of loss or liability paid in settlement of claims
without your consent, unless your consent is unreasonably withheld.
5. In consideration of services provided by us under this Agreement,
we will be entitled to receive compensation as set forth in Schedule A. All
expenses we incur in connection with our services under this Agreement shall be
borne by us.
6. In the event the Prospectus provides for a minimum holding period
in order for us to receive a dealer commission, service fee or other payment,
and Interests relating to that payment are repurchased by the Fund prior to the
termination of that holding period, we are obligated to repay you a pro rata
portion of such payment, based on the ratio of (i) the difference in the period
of time such Interests were held and the minimum holding period to (ii) the
holding period. You may recoup some or all of such amounts from and to the
extent there are any other commissions or payments due and owing from you to us
at any time, provided, however, that you are not obligated to accept repayment
only out of such other commissions or payments and may demand payment directly
from us at any time until such amounts are repaid in full. To secure our
obligation to repay such payments, we hereby grant you, and you shall have, a
security interest in any and all commissions and other payments due us under
this Agreement or under any other agreement between you and us.
7. The rate(s) of any payments for sales of Interests are subject to
change by you from time to time, and any decreases in such payments shall be
made upon 30 days' written notice, and any orders placed after the effective
date of such change, will be subject to the rate(s) in effect at the time of
receipt of the payment by you.
8. Payments for purchases of Interests made by our customers and all
necessary account information required by you to establish an account (including
the Investor Certification) shall be provided to you and received by you no
later than three business days prior to the date as of which an investor seeks
to be admitted to the Fund or to make an additional investment in the Fund, as
applicable. If such payment or other settlement information with respect to any
purchase order are not timely received by you, we understand that you reserve
the right, without notice, to cancel the purchase order. With respect to any
purchase orders for Interests, we shall retain in our files all applications and
other documents required by you to establish an account or to settle the Fund's
purchase of Interests in accordance with the terms of the applicable Repurchase
Offer. We will provide you with the original of such documents at your request.
9. We agree that we will act as agent with respect to Interests only
if they are purchased through you as Distributor or repurchased by the Fund from
our customers. If Interests are purchased through us by our customers, we
warrant that such purchases are only for investment.
10. We may tender Interests (or portions of Interests) owned by our
customers to you for repurchase by the Fund in connection with any Repurchase
Offers, but only in accordance with the procedures described in the applicable
written offer to purchase by the Fund (the "Offer to Purchase"). We understand
and agree that by making a tender of an Interest (or any portion of an Interest)
on behalf of any customer in connection with a Repurchase Offer, we represent to
you that the related Offer to Purchase has been delivered to us by the
registered owner(s) of such Interest, and that the customer's letter of
transmittal pursuant to which the Interest (or portion thereof) is tendered has
been executed in the manner required by the Offer to Purchase. With respect to
such tenders, we shall furnish you with the exact account number and amount of
Interest (or portion thereof) tendered, and we shall retain in our files all
documents required by you and the Fund to effect such transaction. We will
provide you with the original of such documents prior to the expiration of the
Repurchase Offer.
11. We will comply with, and conform our practices to, any and all
written compliance standards and policies and procedures that you may from time
to time provide to us reasonably in advance of the expected date of compliance.
Your obligations to us under this Agreement are subject to the provisions of any
agreements entered into between you and the Fund.
12. Either party may terminate this Agreement by written notice to the
other, which termination shall become effective ten days after the date of
mailing such notice. We agree that you have and reserve the right, in your sole
discretion without notice to us, to suspend or terminate the Offering at any
time, or, in your sole discretion, to modify or amend this Agreement upon
written notice to us of such modification or amendment, which shall be effective
on the date stated in such notice. Without limiting the foregoing, you may
terminate this Agreement if we violate any of the provisions of this Agreement,
said termination to become effective on the date you mail such notice to us.
Without limiting the foregoing, and any provision hereof to the contrary
notwithstanding, the appointment of a trustee for all or substantially all of
our business assets, or our violation of applicable state, Federal or foreign
laws or rules and regulations of authorized regulatory agencies will terminate
this Agreement effective upon the date you mail notice to us of such
termination. Your failure to terminate this Agreement for a particular cause
shall not constitute a waiver of your right to terminate this Agreement at a
later date for the same or any other cause. All notices hereunder shall be to
the respective parties at the addresses listed hereon, unless such address is
changed by written notice sent to the last address of the other party provided
under this Agreement.
13. This Agreement shall become effective as of the date when it is
executed and dated by you below and shall be in substitution of any prior
agreement between you and us covering the Fund. This Agreement and all the
rights and obligations of the parties hereunder shall be governed by and
construed under the laws of the State of New York applicable to agreements to be
performed in New York, without giving effect to choice of law rules. This
Agreement is not assignable or transferable, except that either party may with
30 days' notice or consent from the other party, assign or transfer this
Agreement or any duties under this Agreement to (i) any successor firm or
corporation which becomes the Distributor of the Fund (in your case) or (ii) any
entity under common control with the assigning party (in either your or our
case).
{The remainder of this page has intentionally been left blank}
14. By signing this Agreement, we represent and warrant to you that
this Agreement has been duly authorized by us by all necessary action, corporate
or otherwise, and is signed on our behalf by our duly authorized officer or
principal.
BANC OF AMERICA INVESTMENT SERVICES, INC.
By: /s/ Xxx Xxxxxx
-------------------------------------
Name: Xxx Xxxxxx
Title: SVP
Accepted:
BACAP DISTRIBUTORS, LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name:
Title:
SCHEDULE A
FEE SCHEDULE
We shall be entitled to such compensation under paragraph 5 of this
Agreement as may be mutually agreed upon, from time to time, and as consistent
with the terms of the Distribution Agreement.
03564.0004 #495092
