Exhibit 99.2(h)
UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of November __, 2003 by and between PFPC
DISTRIBUTORS, INC., a Massachusetts corporation ("PFPC Distributors"), and ASA
DEBT ARBITRAGE FUND LLC, an Illinois limited liability company (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as a closed-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and is registering $50,000,000 of its limited liability interests (the
"Interests") under the Securities Act of 1933, as amended (the "1933 Act"), to
be offered for sale in a public offering in accordance with the terms and
conditions set forth in the Prospectus and Statement of Additional Information
included in the Fund's Registration Statement filed with the Securities and
Exchange Commission (the "SEC") on Form N-2, as amended from time to time (the
"Registration Statement"); and
WHEREAS, the Fund wishes to retain PFPC Distributors to serve as
distributor for the Fund to provide for the sale and distribution of the
Interests and for any additional Interests which may become registered during
the term of this Agreement, and PFPC Distributors wishes to furnish such
services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions. As Used in this Agreement:
(a) "Authorized Person" means any officer of the Fund and
any other person duly authorized by the Fund's Board of
Directors to give Oral Instructions and Written Instructions
on behalf of the Fund. An Authorized Person's scope of
authority
may be limited by setting forth such limitation in
a written document signed by both parties hereto.
(b) "NASD" means the National Association of Securities
Dealers, Inc.
(c) "Oral Instructions" mean oral instructions received
by PFPC Distributors from an Authorized Person or from a
person reasonably believed by PFPC Distributors to be an
Authorized Person. PFPC Distributors may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via
electronic mail as Oral Instructions.
(d) "Securities Laws" mean the 1933 Act, the Securities
Exchange Act of 1934 and the 1940 Act.
(e) "Written Instructions" mean (i) written instructions signed
by an Authorized Person and received by PFPC Distributors or
(ii) trade instructions transmitted (and received by PFPC
Distributors) by means of an electronic transaction reporting
system access to which requires use of a password or other
authorized identifier. The instructions may be delivered by
hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. Appointment. The Fund hereby appoints PFPC Distributors to serve as
the distributor of its Interests in accordance with the terms set
forth in this Agreement. PFPC Distributors accepts such appointment
and agrees to furnish such services. The Fund agrees from and after
the date of this Agreement that it will not, without the consent of
PFPC Distributors, sell or agree to sell any Interests otherwise than
through PFPC Distributors, except that the Fund may issue Interests
in connection with the reinvestment of distributions made by the
Fund. The Fund understands that PFPC Distributors is now, and may in
the future be, the distributor of the shares of several investment
companies or series (collectively, the
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"Investment Entities"), including Investment Entities having
investment objectives similar to those of the Fund. The Fund further
understands that investors and potential investors in the Fund may
invest in shares of such other Investment Entities. The Fund agrees
that PFPC Distributors' duties to such Investment Entities shall not
be deemed in conflict with its duties to the Fund under this
Agreement.
3. Delivery of Documents.
(a) The Fund has provided or, where applicable, will provide PFPC
Distributors with the following:
(i) At PFPC Distributors' request, certified or authenticated
copies of the resolutions of the Fund's Board of
Directors, approving the appointment of PFPC Distributors
or its affiliates to provide services to the Fund and
approving this Agreement;
(ii) A copy of the Fund's most recent effective Registration
Statement;
(iii) Copies of any distribution and/or shareholder servicing
plans and agreements made in respect of the Fund;
(iv) A copy of the Fund's organizational documents, as filed
with the state in which the Fund is organized;
(v) Audited annual statements and unaudited semi-annual
statements of the Fund's books and accounts prepared by
the Fund;
(vi) Monthly itemized list of the securities in the Fund;
(vii) Copies (certified or authenticated where applicable) of
any and all amendments or supplements to the foregoing;
and
(viii) Such other additional information as PFPC Distributors
may reasonably request.
(b) The Fund agrees to advise PFPC Distributors as soon as
reasonably practical by a notice in writing delivered to
PFPC Distributors:
(i) of any request by the SEC for amendments to the
Registration Statement, Prospectus or Statement of
Additional Information then in effect or for additional
information;
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(ii) in the event of the issuance by the SEC of any stop
order suspending the effectiveness of the Registration
Statement, Prospectus or Statement of Additional
Information then in effect or the initiation by service
of process on the Fund of any proceeding for that
purpose;
(iii) of the happening of any event that makes untrue any
statement of a material fact made in the Registration
Statement, Prospectus or Statement of Additional
Information then in effect or that requires the making
of a change in such Registration Statement, Prospectus
or Statement of Additional Information in order to make
the statements therein not misleading; and
(iv) of all actions of the SEC with respect to any amendments
to any Registration Statement, Prospectus or Statement
of Additional Information which may from time to time be
filed with the SEC.
For purposes of this paragraph, informal requests by or acts
of the staff of the SEC shall not be deemed actions of or
requests by the SEC.
4. Compliance with Rules and Regulations. PFPC Distributors warrants
that it and its employees and agents shall comply with all
applicable requirements of the Securities Laws and any laws, rules
and regulations of governmental authorities or self-regulatory
organizations having jurisdiction with respect to the duties to be
performed by PFPC Distributors hereunder, including the NASD. Except
as specifically set forth herein, PFPC Distributors assumes no
responsibility for such compliance by the Fund or any other entity.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC
Distributors shall act only upon Oral Instructions or
Written Instructions.
(b) PFPC Distributors shall be entitled to rely upon any
Oral Instruction or Written Instruction it receives from an
Authorized Person (or from a person reasonably believed by
PFPC Distributors to be an Authorized Person) pursuant to
this
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Agreement. PFPC Distributors may assume that any Oral
Instruction or Written Instruction received hereunder is not
in any way inconsistent with the provisions of
organizational documents or this Agreement or of any vote,
resolution or proceeding of the Fund's Board of Directors or
of the Fund's Interestholders, unless and until PFPC
Distributors receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Distributors Written
Instructions confirming Oral Instructions so that PFPC
Distributors receives the Written Instructions by the close
of business on the same day that such Oral Instructions are
received. The fact that such confirming Written Instructions
are not received by PFPC Distributors or differ from the
Oral Instructions shall in no way invalidate the
transactions or enforceability of the transactions
authorized by the Oral Instructions or PFPC Distributors'
ability to rely upon such Oral Instructions. Where Oral
Instructions or Written Instructions reasonably appear to
have been received from an Authorized Person, PFPC
Distributors shall incur no liability to the Fund in acting
upon such Oral Instructions or Written Instructions;
provided that PFPC Distributors' actions comply with the
other provisions of this Agreement.
6. Right to Receive Advice.
(a) Advice of the Fund. If PFPC Distributors is in doubt as to
any action it should or should not take, PFPC Distributors
may request directions or advice, including Oral
Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC Distributors shall be in doubt as
to any question of law pertaining to any action it should or
should not take, PFPC Distributors may request advice from
counsel of its own choosing (who may be counsel for the
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Fund, the Fund's investment adviser or PFPC Distributors, at
the option of PFPC Distributors).
(c) Conflicting Advice. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC Distributors receives from the Fund, and
the advice it receives from counsel, PFPC Distributors may
rely upon and follow the advice of counsel.
(d) Protection of PFPC Distributors. PFPC Distributors shall be
protected in any action it takes or does not take in
reliance upon directions or advice or Oral Instructions or
Written Instructions it receives from the Fund or from
counsel and which PFPC Distributors believes, in good faith,
to be consistent with those directions or advice or Oral
Instructions or Written Instructions. Nothing in this
section shall be construed so as to impose an obligation
upon PFPC Distributors (i) to seek such directions or advice
or Oral Instructions or Written Instructions, or (ii) to act
in accordance with such directions or advice or Oral
Instructions or Written Instructions unless, under the terms
of other provisions of this Agreement, the same is a
condition of PFPC Distributors' properly taking or not
taking such action.
7. Records; Visits. The books and records pertaining to the Fund, which
are in the possession or under the control of PFPC Distributors,
shall be the property of the Fund. Such books and records shall be
prepared and maintained as required by the 1940 Act and other
applicable securities laws, rules and regulations. The Fund and
Authorized Persons shall have access to such books and records at all
times during PFPC Distributors' normal business hours. Upon the
reasonable request of the Fund, copies of any such books and records
shall be provided by PFPC Distributors to the Fund or to an
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Authorized Person, at the Fund's expense.
8. Confidentiality.
(a) Each party shall keep confidential any information relating
to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or
information that is competitively sensitive material, and
not generally known to the public, including, but not
limited to, information about product plans, marketing
strategies, finances, operations, customer relationships,
customer profiles, customer lists, sales estimates, business
plans, and internal performance results relating to the
past, present or future business activities of the Fund or
PFPC Distributors, their respective subsidiaries and
affiliated companies and the customers, clients and
suppliers of any of them; (b) any scientific or technical
information, design, process, procedure, formula, or
improvement that is commercially valuable and secret in the
sense that its confidentiality affords the Fund or PFPC
Distributors a competitive advantage over its competitors;
(c) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source
code, object code, flow charts, databases, inventions,
know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential.
Notwithstanding the foregoing, information shall not be
subject to such confidentiality obligations if it: (a) is
already known to the receiving party at the time it is
obtained; (b) is or becomes publicly known or available
through no wrongful act of the receiving party; (c) is
rightfully received from a third party who, to the best of
the receiving party's knowledge, is not under a duty of
confidentiality; (d) is released by the protected party to a
third party without restriction; (e) is required to be
disclosed by the receiving party
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pursuant to a requirement of a court order, subpoena,
governmental or regulatory agency or law (provided the
receiving party will provide the other party written notice
of such requirement, to the extent such notice is permitted);
(f) is relevant to the defense of any claim or cause of action
asserted against the receiving party; or (g) has been or is
independently developed or obtained by the receiving party.
(b) Notwithstanding any provision herein to the contrary, each
party hereto agrees that any Nonpublic Personal Information,
as defined under Section 248.3(t) of Regulation S-P
("Regulation S-P"), promulgated under the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act (the "Act"), disclosed by a party hereunder is for the
specific purpose of permitting the other party to perform
the services set forth in this Agreement. Each party agrees
that, with respect to such information, it will comply with
Regulation S-P and the Act and that it will not disclose any
Nonpublic Personal Information received in connection with
this Agreement to any other party, except to the extent as
necessary to carry out the services set forth in this
Agreement or as otherwise permitted by Regulation S-P or the
Act.
9. Compensation. PFPC Distributors shall not be entitled to any
compensation from the Fund with respect to the services that it shall
provide hereunder. To the extent that PFPC Distributors enters into
investor servicing agreements with financial intermediaries, the Fund
shall reimburse PFPC Distributors for payments made to such
intermediaries up to an amount equal to 0.60% (on an annualized
basis) of the aggregate value of outstanding Interests. The Fund
acknowledges that PFPC Distributors may receive float benefits and/or
investment earnings in connection with maintaining certain accounts
required to provide services under this Agreement.
10. Indemnification.
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(a) The Fund agrees to indemnify and hold harmless PFPC
Distributors and its affiliates from all taxes, charges,
expenses, assessments, claims and liabilities (including,
without limitation, attorneys' fees and disbursements and
liabilities arising under the Securities Laws and any state
and foreign securities and blue sky laws) arising directly
or indirectly from any action or omission to act which PFPC
Distributors takes in connection with the provision of
services to the Fund. Neither PFPC Distributors, nor any of
its affiliates, shall be indemnified against any liability
(or any expenses incident to such liability) caused by PFPC
Distributors' or its affiliates' own willful misfeasance,
bad faith, gross negligence or reckless disregard of its
duties and obligations under this Agreement.
(b) The Fund agrees to indemnify and hold harmless PFPC
Distributors, its officers, directors, and employees, and
any person who controls PFPC Distributors within the meaning
of Section 15 of the 1933 Act, free and harmless (a) from
and against any and all claims, costs, expenses (including
reasonable attorneys' fees) losses, damages, charges,
payments and liabilities of any sort or kind which PFPC
Distributors, its officers, directors, employees or any such
controlling person may incur under the 1933 Act, under any
other statute, at common law or otherwise, arising out of or
based upon: (i) any untrue statement, or alleged untrue
statement, of a material fact contained in the Fund's
Registration Statement, Prospectus, Statement of Additional
Information, or sales literature (including amendments and
supplements thereto), or (ii) any omission, or alleged
omission, to state a material fact required to be stated in
the Fund's Registration Statement, Prospectus, Statement of
Additional Information or sales literature (including
amendments or supplements thereto), necessary to make the
statements therein
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not misleading, provided, however, that insofar as losses,
claims, damages, liabilities or expenses arise out of or are
based upon any such untrue statement or omission or alleged
untrue statement or omission made in reliance on and in
conformity with information furnished to the Fund by PFPC
Distributors or its affiliated persons for use in the Fund's
Registration Statement, Prospectus, or Statement of
Additional Information or sales literature (including
amendments or supplements thereto), such indemnification is
not applicable; and (b) from and against any and all such
claims, demands, liabilities and expenses (including such
costs and counsel fees) which PFPC Distributors, its
officers and directors, or such controlling person, may
incur in connection with this Agreement or PFPC
Distributors' performance hereunder (but excluding such
claims, demands, liabilities and expenses (including such
costs and counsel fees) arising out of or based upon any
untrue statement, or alleged untrue statement, of a material
fact contained in any Registration Statement or any
Prospectus or arising out of or based upon any omission, or
alleged omission, to state a material fact required to be
stated in either any Registration Statement or any
Prospectus or necessary to make the statements in either
thereof not misleading), unless such claims, demands,
liabilities and expenses (including such costs and counsel
fees) arise by reason of PFPC Distributors' willful
misfeasance, bad faith or gross negligence in the
performance of PFPC Distributors' duties hereunder. The Fund
acknowledges and agrees that in the event that PFPC
Distributors is required to give indemnification comparable
to that set forth in this paragraph to any registered
investment adviser recommending the purchase of Interests by
its clients, broker-dealer selling Interests of the Fund or
servicing agent servicing the Interestholders
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of the Fund and such entity shall make a claim for
indemnification against PFPC Distributors, PFPC Distributors
shall make a similar claim for indemnification against the
Fund.
(c) PFPC Distributors agrees to indemnify and hold harmless the
Fund, its several officers and Board Members and each
person, if any, who controls a Portfolio within the meaning
of Section 15 of the 1933 Act against any and all claims,
costs, expenses (including reasonable attorneys' fees),
losses, damages, charges, payments and liabilities of any
sort or kind which the Fund, its officers, Board Members or
any such controlling person may incur under the 1933 Act,
under any other statute, at common law or otherwise, but
only to the extent that such liability or expense incurred
by the Fund, its officers or Board Members, or any
controlling person resulting from such claims or demands
arose out of the acquisition of any Interests by any person
which may be based upon any untrue statement, or alleged
untrue statement, of a material fact contained in the Fund's
Registration Statement, Prospectus or Statement of
Additional Information (including amendments and supplements
thereto), or any omission, or alleged omission, to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, if such
statement or omission was made in reliance upon information
furnished or confirmed in writing to the Fund by PFPC
Distributors or its affiliated persons (as defined in the
1940 Act). The foregoing rights of indemnification shall be
in addition to any other rights to which the Fund or any
such person shall be entitled to as a matter of law.
(d) In any case in which one party hereto (the "Indemnifying
Party") may be asked to indemnify or hold the other party
hereto (the "Indemnified Party") harmless, the
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Indemnified Party will notify the Indemnifying Party promptly
after identifying any situation which it believes presents or
appears likely to present a claim for indemnification (an
"Indemnification Claim") against the Indemnifying Party,
although the failure to do so shall not prevent recovery by
the Indemnified Party, and shall keep the Indemnifying Party
advised with respect to all developments concerning such
situation. The Indemnifying Party shall have the option to
defend the Indemnified Party against any Indemnification
Claim which may be the subject of this indemnification, and,
in the event that the Indemnifying Party so elects, such
defense shall be conducted by counsel chosen by the
Indemnifying Party and satisfactory to the Indemnified
Party, and thereupon the Indemnifying Party shall take over
complete defense of the Indemnification Claim and the
Indemnified Party shall sustain no further legal or other
expenses in respect of such Indemnification Claim. In the
event that the Indemnifying Party does not elect to assume
the defense of any such suit, or in case the Indemnified
Party reasonably does not approve of counsel chosen by the
Indemnifying Party, or in case there is a conflict of
interest between the Indemnifying Party or the Indemnified
Party, the Indemnifying Party will reimburse the Indemnified
Party for the fees and expenses of any counsel retained by
the Indemnified Party. The Fund agrees promptly to notify
PFPC Distributors of the commencement of any litigation or
proceedings against the Fund or any of its officers or
directors in connection with the issue and sale of any
Interests. The Indemnified Party will not confess any
Indemnification Claim or make any compromise in any case in
which the Indemnifying Party will be asked to provide
indemnification, except with the Indemnifying Party's prior
written consent.
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11. Responsibility of PFPC Distributors.
(a) PFPC Distributors shall be under no duty to take any action
hereunder on behalf of the Fund except as specifically set
forth herein or as may be specifically agreed to by PFPC
Distributors and the Fund in a written amendment hereto.
PFPC Distributors shall be obligated to exercise care and
diligence in the performance of its duties hereunder and to
act in good faith in performing services provided for under
this Agreement. PFPC Distributors shall be liable only for
any damages arising out of PFPC Distributors' failure to
perform its duties under this Agreement to the extent such
damages arise out of PFPC Distributors' willful misfeasance,
bad faith, gross negligence or reckless disregard of such
duties.
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) PFPC Distributors
shall not be liable for losses beyond its control,
including, without limitation, delays or errors or loss of
data occurring by reason of circumstances beyond PFPC
Distributors' control, provided that PFPC Distributors has
acted in accordance with the standard set forth in Section
11(a) above; and (ii) PFPC Distributors shall not be under
any duty or obligation to inquire into and shall not be
liable for the validity or invalidity or authority or lack
thereof of any Oral Instruction or Written Instruction,
notice or other instrument which conforms to the applicable
requirements of this Agreement, and which PFPC Distributors
reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC Distributors nor its affiliates shall be liable
for any consequential, special or indirect losses or
damages, whether or not the likelihood of such losses or
damages was known by PFPC Distributors or its affiliates.
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(d) Each party shall have a duty to mitigate damages for which
the other party may become responsible.
12. Duties and Obligations of the Fund.
(a) The Fund represents to PFPC Distributors that all
Registration Statements and Prospectuses filed by the Fund
with the SEC under the 1933 Act with respect to the
Interests have been prepared in conformity with the
requirements of the 1933 Act and the rules and regulations
of the SEC thereunder. Except as to information included in
the Registration Statement in reliance upon information
provided to the Fund by PFPC Distributors or any affiliate
of PFPC Distributors expressly for use in the Registration
Statement, the Fund represents and warrants to PFPC
Distributors that any Registration Statement, when such
Registration Statement becomes effective, will contain
statements required to be stated therein in conformity with
the 1933 Act and the rules and regulations of the SEC; that
all statements of fact contained in any such Registration
Statement will be true and correct when such Registration
Statement becomes effective; and that no Registration
Statement when such Registration Statement becomes effective
will include 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 not misleading to a
purchaser of the Interests. PFPC Distributors may but shall
not be obligated to propose from time to time such amendment
or amendments to any Registration Statement and such
supplement or supplements to any Prospectus as, in the light
of future developments, may, in the opinion of the PFPC
Distributors' counsel, be necessary or advisable. PFPC
Distributors shall promptly notify the Fund of any advice
given to it by its counsel regarding the necessity or
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advisability of amending or supplementing such Registration
Statement. If the Fund shall not respond to PFPC
Distributor's proposal of such amendment or amendments
and/or supplement or supplements within fifteen days after
receipt by the Fund of a written request from PFPC
Distributors to do so, PFPC Distributors may, at its option,
terminate this Agreement. The Fund shall not file any
amendment to any Registration Statement or supplement to any
Prospectus without giving PFPC Distributors reasonable
notice thereof in advance; provided, however, that nothing
contained in this Agreement shall in any way limit the
Fund's right to file at any time such amendments to any
Registration Statements and/or supplements to any
Prospectus, of whatever character, as the Fund may deem
advisable, such right being in all respects absolute and
unconditional. The Fund authorizes PFPC Distributors to use
any Prospectus or Statement of Additional Information in the
form furnished from time to time in connection with the sale
of the Interests.
(b) The Fund represents and warrants to PFPC Distributors that
the Fund is an investment company registered under the 1940
Act and the Interests sold by the Fund are, and will be,
registered under the 1933 Act.
(c) The net asset value of the Interests shall be determined in
the manner provided in the then current Prospectus and
Statement of Additional Information relating to the
Interests, and when determined shall be applicable to all
transactions as provided in the Prospectus. The net asset
value of the Interests shall be calculated by the Fund or by
another entity on behalf of the Fund. PFPC Distributors
shall have no duty to inquire into, or liability for, the
accuracy of the net asset value per Interest as calculated.
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(d) Whenever in its judgment such action is warranted by unusual
market, economic or political conditions or abnormal
circumstances of any kind, the Fund may decline to accept
any orders for, or make any sales of, the Interests until
such time as the Fund deems it advisable to accept such
orders and to make such sales, and the Fund advises PFPC
Distributors promptly of such determination.
(e) The Fund agrees to execute any and all documents and to
furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with
the qualification of the Interests for sale in such states
as PFPC Distributors may designate. The Fund shall notify
PFPC Distributors in writing of the states in which the
Interests may be sold and shall notify PFPC Distributors in
writing of any changes to the information contained in the
previous notification. PFPC Distributors agrees that it will
forward such information to any financial intermediaries
selling Interests in the Fund.
13. Duties and Obligations of PFPC Distributors.
(a) PFPC Distributors agrees to use its best efforts to sell
Interests through financial intermediaries. It is understood
that PFPC Distributors does not undertake to sell all or any
specific number or amount of Interests. The Fund
acknowledges that PFPC Distributors will not make offers or
sales of Interests directly to Investors.
(b) PFPC Distributors will act as agent on behalf of the Fund
for the distribution of the Interests covered by the
Registration Statement under the 1933 Act and provide the
distribution services outlined below and as follows: (i)
preparation and execution of sales or servicing agreements,
(ii) preparation of quarterly reports to the Board with
respect to the Investor Servicing Fee, (iii) literature
review, recommendations and submission to the NASD.
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(c) PFPC Distributors agrees to use efforts deemed appropriate
by PFPC Distributors to solicit orders for the sale of the
Interests and will undertake such advertising and promotion
as it believes reasonable in connection with such
solicitation, provided, however, that PFPC Distributors
agrees that it will not make offers or sales of Interests
except in the manner set forth in the Prospectus. To the
extent that PFPC Distributors receives investor servicing
fees under any plan adopted by the Fund, PFPC Distributors
agrees to enter into arrangements with others for the
furnishing of, personal and/or account maintenance services
with respect to the relevant Interestholders of the Fund as
may be required pursuant to such plan. It is contemplated
that PFPC Distributors will enter into agreements with
broker-dealers, registered investment advisers or other
financial intermediaries that will recommend the purchase of
interests to its clients. PFPC Distributors will require
each financial intermediary with whom PFPC Distributors has
an agreement to conform to the applicable provisions of the
Prospectus, including the requirement that no sale of
Interests to any one investor will be for less than the
minimum amounts as may be specified in the Prospectus.
(d) PFPC Distributors shall not utilize any materials in
connection with the sale or offering of Interests except the
Fund's Prospectus and Statement of Additional Information
and such other materials as the Fund shall provide or
approve. The Fund agrees to furnish PFPC Distributors with
sufficient copies of any and all: agreements, plans,
communications with the public or other materials which the
Fund intends to use in connection any sales of Interests, in
adequate time for PFPC Distributors to file and clear such
materials with the proper authorities before they are put in
use. PFPC Distributors and the Fund may agree that any
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such material does not need to be filed subsequent to
distribution. In addition, the Fund agrees not to use any
such materials until so filed and cleared for use, if
required, by appropriate authorities as well as by PFPC
Distributors.
(e) PFPC Distributors will transmit any orders received by it
for purchase of the Interests to the transfer agent for the
Fund. PFPC Distributors will have no liability for payment
for the purchase of Interests sold pursuant to this
Agreement.
(f) No Interests shall be offered by either PFPC Distributors or
the Fund under any of the provisions of this Agreement and
no orders for the purchase of Interests hereunder shall be
accepted by the Fund if and so long as effectiveness of the
Registration Statement then in effect or any necessary
amendments thereto shall be suspended under any of the
provisions of the 1933 Act, or if and so long as a current
Prospectus as required by Section 5(b)(2) of the 1933 Act is
not on file with the SEC.
(g) It is understood that the Fund intends to admit as members
of the Fund only "qualified clients" as such term is defined
in Rule 205-3 under the Investment Advisers Act of 1940, as
amended. The Fund acknowledges and agrees PFPC Distributors
shall have no responsibility for determining whether any
purchaser of Interests is a "qualified client."
14. Duration and Termination. This Agreement shall become effective on
the date first written above and, unless sooner terminated as
provided herein, shall continue for an initial two-year term and
thereafter shall be renewed for successive one-year terms, provided
such continuance is specifically approved at least annually by (i)
the Fund's Board of Directors or (ii) by a vote of a majority (as
defined in the ▇▇▇▇ ▇▇▇) of the outstanding voting securities of the
Fund, provided that in either event the continuance is
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also approved by a majority of the Board Members who are not parties to
this Agreement and who are not interested persons (as defined in the
▇▇▇▇ ▇▇▇) of any party to this Agreement, by vote cast in person at a
meeting called for the purpose of voting on such approval. This
Agreement is terminable without penalty, on at least sixty days'
written notice, by the Fund's Board of Directors, by vote of a
majority (as defined in the ▇▇▇▇ ▇▇▇) of the outstanding voting
securities of the Fund, or by PFPC Distributors. This Agreement will
also terminate automatically in the event of its assignment (as
defined in the 1940 Act and the rules thereunder). In the event the
Fund gives notice of termination, all expenses associated with
movement (or duplication) of records and materials and conversion
thereof to a successor transfer agent or other service provider, and
all trailing expenses incurred by PFPC Distributors, will be borne by
the Fund.
15. Notices. Notices shall be addressed (a) if to PFPC Distributors, at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
President; (b) if to the Fund, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or
(c) if to neither of the foregoing, at such other address as shall
have been given by like notice to the sender of any such notice or
other communication by the other party. If notice is sent by
confirming telegram, cable, telex or facsimile sending device, it
shall be deemed to have been given immediately. If notice is sent by
first-class mail, it shall be deemed to have been given three days
after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered.
16. Amendments. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of
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which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
18. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
19. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties and
supersedes all prior agreements and understandings relating
to the subject matter hereof, provided that the parties may
embody in one or more separate documents their agreement, if
any, with respect to delegated duties.
(b) No Changes that Materially Affect Obligations.
Notwithstanding anything in this Agreement to the contrary,
the Fund agrees not to make any modifications to its
registration statement or adopt any policies which would
affect materially the obligations or responsibilities of
PFPC Distributors hereunder without the prior written
approval of PFPC Distributors, which approval shall not be
unreasonably withheld or delayed.
(c) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect
their construction or effect.
(d) Governing Law. This Agreement shall be deemed to be a
contract made in Delaware and governed by Delaware law,
without regard to principles of conflicts of law.
(e) Partial Invalidity. If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule
or otherwise, the remainder of this
20
Agreement shall not be affected thereby.
(f) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
(g) No Representations or Warranties. Except as expressly
provided in this Agreement, PFPC Distributors hereby
disclaims all representations and warranties, express or
implied, made to the Fund or any other person, including,
without limitation, any warranties regarding quality,
suitability, merchantability, fitness for a particular
purpose or otherwise (irrespective of any course of dealing,
custom or usage of trade), of any services or any goods
provided incidental to services provided under this
Agreement. PFPC Distributors disclaims any warranty of title
or non-infringement except as otherwise set forth in this
Agreement.
(h) Facsimile Signatures. The facsimile signature of any party
to this Agreement shall constitute the valid and binding
execution hereof by such party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
PFPC DISTRIBUTORS, INC.
By:
Title:
ASA DEBT ARBITRAGE FUND LLC
By:
Title:
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