Exhibit (h)(1)
ADVANTAGE ADVISERS MULTI-SECTOR FUND I
Shares of Beneficial Interest
DISTRIBUTION AGREEMENT
As of April 25, 2003
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Dear Sirs:
The undersigned, Advantage Advisers Multi-Sector Fund I, a Delaware
business trust (the "Fund"), and Advantage Advisers, L.L.C., a Delaware
limited liability company (the "Investment Adviser"), address you as
distributor ("Distributor") as agent for the offer and sale from time to time
of shares of beneficial interest, $.001 par value per share (the "Shares"), of
the Fund to the public.
The Fund and the Investment Adviser wish to confirm as follows their
agreements with you in connection with the distribution of the Shares.
The Fund has entered into an Investment Advisory Agreement with the
Investment Adviser dated April 25, 2003 ("Advisory Agreement"). The Fund has
entered into a Custodian Services Agreement with PFPC Trust Company dated
March 21, 2002 ("Custody Agreement") and a Transfer Agency Services Agreement
Agreement ("Transfer Agency Agreement") and an Administration and Accounting
Agreement ("Administration Agreement") with PFPC Inc., each dated March 21,
2002. The Fund and the Investment Adviser have each entered into
Sub-Investment Advisory Agreements with each of Alkeon Capital Management,
LLC, Kilkenny Capital Management, L.L.C. and KBW Asset Management, Inc., each
of which is dated April 25, 2003 (such agreements are herein referred to
collectively as the "Sub-Advisory Agreements"). Collectively, the Advisory
Agreement, the Custody Agreement, the Transfer Agency Agreement, the
Administration Agreement and each Sub-Advisory Agreement are referred to as
the "Fund Agreements." This Distribution Agreement is herein referred to as
the "Agreement."
1. Registration Statement and Prospectus. The Fund has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended (the
"1933 Act"), the Investment Company Act of 1940, as amended (the "1940 Act"),
and the rules and regulations of the Commission under the 1933 Act (the "1933
Act Rules and Regulations") and the 1940 Act (the "1940 Act Rules and
Regulations" and together with the 1933 Act Rules and Regulations, the "Rules
and Regulations") a registration statement on Form N-2 (File Nos. 333-67926
and 811-10473 under the 1933 Act and the 1940 Act, respectively) and one or
more amendments thereto which was declared effective on February 4, 2002 (the
"registration statement"), including a prospectus and statement of additional
information relating to the offering of up to 16,000,000 Shares in connection
with the initial offering of Shares (the "Initial Offering"), and a
notification of registration of the Fund as an investment company under the
1940 Act on Form N-8A (the "1940 Act Notification"), and may pursuant to the
Rules and Regulations prepare and file a post-effective amendment to the
registration statement relating to additional Shares to be offered in the
Initial Offering pursuant to Rule 462(b) of the 1933 Act Rules and Regulations
(a "Rule 462 amendment") and from time to time intends pursuant to the Rules
and Regulations to prepare and file one or more post-effective amendments to
the registration statement relating to additional Shares to be offered in a
continuous offering (the "Continuous Offering") pursuant to Rule 415(a)(xi) of
the 1933 Act Rules and Regulations (a "Rule 415 amendment"). The term
"Registration Statement" as used in this Agreement means the Fund's currently
effective registration statement (including without limitation after the
filing of a Rule 462 amendment or any Rule 415 amendment declared effective by
the Commission), including the Prospectus. The term "Prospectus" as used in
this Agreement means the prospectus and statement of additional information in
the forms included in the Fund's Registration Statement (and any supplements
or amendments thereto). The terms "Registration Statement" and "Prospectus"
shall also include any financial statements and schedules and notes thereto
and other information included or incorporated by reference therein.
2. Appointment as Distributor.
(a) The Fund hereby appoints the Distributor to act as its principal
distributor of Shares in jurisdictions wherein Shares may legally be offered
for sale.
(b) The Distributor accepts such appointment as principal distributor
and agrees to render such services and to assume the obligations herein set
forth for the compensation herein provided. The Distributor shall for all
purposes herein provided unless otherwise specified be deemed to be an
independent contractor and, unless expressly provided herein or otherwise
authorized, shall have no authority to act for or represent the Fund in any
way. The Distributor, by separate agreement with the Fund, may also serve the
Fund in other capacities. The services of the Distributor to the Fund under
this Agreement are not to be deemed exclusive, and the Distributor shall be
free to render similar services or other services to others so long as its
services hereunder are not impaired thereby. The Distributor represents that
it is registered with the Commission as a broker or dealer under Section 15 of
the Securities Exchange Act of 1934, as amended, and a member in good standing
of the National Association of Securities Dealers, Inc. (the "NASD").
(c) In carrying out its duties and responsibilities hereunder, the
Distributor may, pursuant to separate written contracts, delegate its
responsibilities as distributor to various brokers, dealers or other financial
intermediaries selected by it as selling agents (each, a "Selling Agent") to
provide advertising, promotion and other distribution services contemplated
hereunder directly to or for existing and potential shareholders who may be
clients of such Selling Agents; provided that the Distributor will not
delegate its duties to any Selling Agent that is not authorized to distribute
Shares under applicable law. Such Selling Agents shall at all times be deemed
to be independent contractors retained by the Distributor and not the Fund.
(d) The Distributor shall use its best efforts with reasonable
promptness to sell such authorized Shares of the Fund remaining unissued as
from time to time shall be effectively registered under the 1933 Act and
offered by the Fund, at prices determined as hereinafter provided and on terms
hereinafter set forth, all subject to applicable federal and state laws and
regulations and to the Fund's Registration Statement and the amended and
restated agreement and declaration of trust ("Agreement and Declaration of
Trust") and by-laws ("By-Laws") of the Fund; provided, however, that the
Distributor may in its discretion refuse to accept orders for Shares from any
particular prospective investor. Without limiting the foregoing, the
Distributor agrees to sell Shares only to investors who are "Qualified
Clients" as that term is defined in the Prospectus, and to impose this
requirement as a condition of the sales activity of any Selling Agent with
whom the Distributor enters into a master selling and servicing agreement or
other selling group arrangement with respect to the Shares.
(e) The Distributor shall sell Shares only to investors or through
qualified Selling Agents in such manner not inconsistent with the provisions
hereof, the Fund's Registration Statement and any master selling and servicing
agreement as the Distributor may determine from time to time. Whenever the
Distributor sells Shares directly to investors, the Distributor will provide
the shareholder services as set forth in the Registration Statement and as
contemplated by the terms of any master selling and servicing agreement or
other selling group arrangement with respect to the Shares. No Selling Agent
or other person shall be appointed or authorized to act as agent of the Fund
without the prior consent of the Fund.
3. Delivery of Shares and Payments Therefor.
(a) The Distributor and Selling Agents shall order Shares from the
Fund only to the extent that it or they shall have received purchase orders
therefor. The Distributor will not make, or authorize Selling Agents or others
to make: (a) any short sales of Shares; or (b) any sales of such Shares to any
Board member or officer of the Fund or to any officer or Board member of the
Distributor or of any corporation or association furnishing investment
advisory, managerial or supervisory services to the Fund, or to any
corporation or association, unless such sales are made in accordance with the
Fund's Registration Statement relating to the sale of such Shares. In selling
Shares, the Distributor will in all respects conform to the requirements of
all state and federal laws and the Conduct Rules of the NASD relating to such
sales, and the Distributor will observe and be bound by all the provisions of
the Fund's Registration Statement and the Agreement and Declaration of Trust,
By-Laws or other organizational documents of the Fund (and of any fundamental
policies adopted by the Fund pursuant to the 1940 Act as to which the
Distributor has been given notice by the Fund) which at the time in any way
require, limit, restrict, prohibit or otherwise regulate any action on the
part of the Distributor hereunder.
(b) Delivery to investors in the Fund of, and payment to the Fund
for, Shares shall be made by means of the National Securities Clearing
Corporation ("NSCC") Fund Settlement, Entry and Registration Verification
System (the "Fund/SERV System") (or by another mutually agreeable means) and
shall be effected by the settlement of trade details that are transmitted to
the Fund/SERV System by the Fund (or its agents) on the one hand and the
Distributor or any Selling Agent on the other in accordance with the
procedures of the Fund/SERV System on any closing date for additional sales of
Shares during the Continuous Offering, on the closing date determined by the
Fund with respect to each such additional closing (each such date, an
"Additional Closing Date," each of which may, together with the Initial
Closing Date, be referred to as a "Closing Date."
(c) The Shares shall be registered in such names and in such
denominations as the Distributor or any Selling Agent shall request in
accordance with the procedures of the Fund/SERV System.
(d) Shares offered for sale or sold by the Distributor shall be so
offered or sold at a price per Share determined in accordance with the
Registration Statement. The price the Fund shall receive for all Shares
purchased from it shall be the net asset value used in determining the public
offering price applicable to the sale of such Shares, except with respect to
Shares sold during the Initial Offering, which shall be offered and sold at
the price set forth in the Prospectus relating to the Initial Offering. Any
excess of the sales price over the public offering price of the Shares sold by
the Distributor shall be retained by the Distributor as a commission for its
services hereunder. The Distributor may compensate Selling Agents for sales of
Shares at the commission levels provided in a Written Communication from time
to time. The Distributor shall also receive any services fees payable by the
Fund, as provided in the Fund's service plan or by the Investment Adviser with
respect to Shares as provided in the Registration Statement (or any supplement
or amendment thereto).
4. Agreements of the Fund and the Investment Adviser. The Fund and
the Investment Adviser agree with the Distributor as follows:
(a) [Reserved.]
(b) The Fund will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request made by the Commission for
amendment of or a supplement to the Fund's Registration Statement or the
Prospectus or for additional information, (ii) of the issuance by the
Commission, the NASD, any state securities commission, any national securities
exchange, any arbitrator, any court or any other governmental, regulatory,
self-regulatory or administrative agency or any official of any order
suspending the effectiveness of the Fund's Registration Statement, prohibiting
or suspending the use of the Prospectus or any sales material (as hereinafter
defined), of any notice pursuant to Section 8(e) of the 1940 Act, of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction, or the initiation or contemplated initiation of any proceeding
for any such purposes, (iii) of receipt by the Fund, any affiliate of the Fund
or any representative or attorney of the Fund of any other material
communication from the Commission and (iv) of any material, adverse change in
the condition (financial or other), general affairs, business, prospects,
properties, net assets or results of operations of the Fund or of the
happening of any event which makes any statement of a material fact made in
the Fund's Registration Statement, the Prospectus or any sales material (or
any amendment or supplement to any of the foregoing) untrue or which requires
the making of any additions to or changes in the Fund's Registration
Statement, the Prospectus or any sales material in order to state a material
fact required by the 1933 Act, the 1940 Act or the Rules and Regulations to be
stated therein or necessary in order to make the statements therein (in the
case of a Prospectus or any sales material, in light of the circumstances
under which they were made) not misleading or of the necessity to amend or
supplement the Fund's Registration Statement, the Prospectus or any sales
material to comply with the 1933 Act, the 1940 Act, the Rules and Regulations
or any other law or order of any court or regulatory body. If at any time the
Commission shall issue any order suspending the effectiveness of the Fund's
Registration Statement, prohibiting or suspending the use of the Prospectus or
any sales material (or any amendment or supplement to any of the foregoing) or
suspending the qualification of the Shares for offering or sale in any
jurisdiction, the Fund and the Investment Adviser, upon your request, will use
their best efforts to obtain the withdrawal of such order at the earliest
possible time.
(c) The Fund will furnish to you, without charge, a signed copy of
the registration statement and the 1940 Act Notification as originally filed
with the Commission and of each amendment thereto, including financial
statements and all exhibits thereto and will also furnish to you, without
charge, such number of conformed copies of the registration statement as
originally filed and of each amendment thereto, with or without exhibits, as
you may reasonably request.
(d) [Reserved]
(e) The Fund will deliver to you and any Selling Agent, without
charge, in such quantities as you may reasonably request, copies of the Fund's
Prospectus. The Fund consents to the use, in accordance with the provisions of
the 1933 Act and with the securities or Blue Sky laws of the jurisdictions in
which the Shares are offered by you and by Selling Agents, each Prospectus so
furnished by the Fund.
(f) If, prior to the termination of this Agreement, any event shall
occur that in the judgment of the Fund or you is required to be set forth in
the Registration Statement or the Prospectus or should be set forth therein in
order to make the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not misleading or if it is
necessary to supplement or amend the Registration Statement or the Prospectus
to comply with the 1933 Act, the 1940 Act, the Rules and Regulations or any
other law, rule or regulation, the Fund will forthwith notify you of such
event, and, if requested by you, prepare and, subject to the provisions of
paragraph (d) above, promptly file with the Commission an appropriate
amendment or supplement thereto and will expeditiously furnish to you and any
Selling Agent, without charge, such number of copies thereof as they may
reasonably request. In the event that the Registration Statement or the
Prospectus is to be amended or supplemented, the Fund, if requested by you,
will promptly issue a press release announcing or disclosing the matters to be
covered by the proposed amendment or supplement.
(g) Subject to and in compliance with the description contained in
the Prospectus and the terms of any selling and servicing agreement that
provides, among other things, for any Selling Agent to provide ongoing
shareholder services to customers of such Selling Agent that hold Shares, the
Fund and the Investment Adviser, respectively, will each pay the ongoing
servicing fees and any other fees described in the Prospectus (in accordance
with the descriptions thereof in the Prospectus).
(h) The Fund will cooperate with you in connection with the
registration or qualification of Shares for offering and sale by you and the
several Selling Agents under the securities or Blue Sky laws of such
jurisdictions within the United States as you (or they) may designate and will
file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided
that in no event shall the Fund be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which
would subject it to service of process in suits, other than those arising out
of the offering or sale of the Shares, in any jurisdiction where it is not now
so subject.
(i) The Fund will make generally available to its security holders an
earnings statement, which need not be audited, covering a twelve-month period
commencing after the effective date of the Registration Statement and ending
not later than 15 months thereafter, as soon as practicable after the end of
such period, which earnings statement shall satisfy the provisions of Section
11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations.
(j) The Fund will comply with the undertaking set forth in the last
sentence of Item 33 of Part C of the Registration Statement.
(k) Until the fifth anniversary of the termination of this Agreement,
the Fund will furnish or will have furnished to you (i) as soon as available,
a copy of each report of the Fund mailed to shareholders or filed with the
Commission and (ii) from time to time such other information concerning the
Fund as you may reasonably request.
(l) [Reserved.]
(m) The Fund will direct the investment of the net proceeds from the
sale of Shares (i) in accordance with the description set forth in the
Prospectus and (ii) in such a manner so as to comply with the investment
objectives, policies and restrictions of the Fund as described in the
Prospectus (as amended or supplemented).
(n) The Fund will file the requisite copies of the Prospectus with
the Commission in a timely fashion pursuant to the 1933 Act Rules and
Regulations.
(o) Except as provided in this Agreement or pursuant to any dividend
reinvestment plan of the Fund, the Fund will not sell, contract to sell or
otherwise dispose of, any Shares or any securities convertible into or
exercisable or exchangeable for Shares or grant any options or warrants to
purchase Shares, for a period of 120 days after the Initial Closing Date,
without the prior written consent of the Distributor.
(p) Except as stated in this Agreement and in the Prospectus, neither
the Fund nor the Investment Adviser has taken, nor will it take, directly or
indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Shares.
(q) The Fund will direct the investment of the proceeds of the sale
of Shares so as to comply with the requirements of Subchapter M of the
Internal Revenue Code of 1986, as amended (the "Code"), to qualify as a
regulated investment company under the Code.
5. Representations and Warranties of the Fund and the Investment
Adviser. The Fund and the Investment Adviser, jointly and severally, represent
and warrant to you that:
(a) The Registration Statement, the Prospectus and the 1940 Act
Notification comply in all material respects with the provisions of the 1933
Act, the 1940 Act and the Rules and Regulations and do not or will not at any
time contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading; except that this
representation and warranty does not apply to statements in or omissions from
the Registration Statement and the Prospectus made in reliance upon and in
conformity with information relating to you or any Selling Agent furnished to
the Fund in writing by or on behalf of you or such Selling Agent through you
expressly for use therein.
(b) All the currently outstanding Shares have been duly authorized
and validly issued, are fully paid and nonassessable and are free of any
preemptive or similar rights, any Shares to be sold hereunder have been (or
will have been) duly authorized and, when issued and delivered to the
purchasers of the Shares against payment therefor in accordance with the terms
hereof, will be validly issued, fully paid and nonassessable and free of any
preemptive or similar rights and the Shares conform to the description thereof
in the Registration Statement or the Prospectus.
(c) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of the State of Delaware, with
full power and authority to own its properties in trust and to conduct its
business as described in the Registration Statement and the Prospectus (and
any amendment or supplement to either of them) and is duly registered and
qualified to conduct business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so to
register or to qualify does not have a material, adverse effect on the
condition (financial or other), general affairs, business, properties, net
assets or results of operations of the Fund. The Fund has no subsidiaries.
(d) There are no legal or governmental proceedings pending or, to the
knowledge of the Fund, threatened, against the Fund, or to which the Fund or
any of its properties is subject, that are required to be described in the
Registration Statement or the Prospectus but are not described as required and
there are no agreements, contracts, indentures, leases or other instruments
that are required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that are
not described or filed as required by the 1933 Act, the 1940 Act or the Rules
and Regulations.
(e) The Fund is not in violation of its Agreement and Declaration of
Trust, By-Laws or other organizational documents or any law, ordinance,
administrative or governmental rule or regulation applicable to the Fund or of
any decree of the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
other agency or any body or official having jurisdiction over the Fund or in
material breach or material default in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any agreement, indenture, lease or other
instrument to which the Fund is a party or by which it or any of its
properties may be bound, and which, as a result of such violation, material
breach or material default would reasonably be expected to have a material,
adverse affect on the Fund's ability to perform its obligations under this
Agreement.
(f) Neither the issuance and sale of the Shares contemplated by this
Agreement, the execution, delivery or performance of this Agreement or any of
the Fund Agreements by the Fund, nor the consummation by the Fund of the
transactions contemplated hereby or thereby with respect to the Initial
Offering (i) requires any consent, approval, authorization or order of or
registration or filing with the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court,
regulatory, body, administrative agency or other governmental body, agency or
official having jurisdiction over the Fund (except compliance with the
securities or Blue Sky laws of various jurisdictions which have been or will
be effected in accordance with this Agreement) or conflicts or will conflict
with or constitutes or will constitute a breach of the Agreement and
Declaration of Trust, By-Laws or other organizational documents of the Fund or
(ii) (A) conflicts or will conflict in a material manner with or constitutes
or will constitute a material breach of or a material default under any
material agreement, indenture, lease or other instrument to which the Fund is
a party or by which it or any of its properties may be bound, and which, as a
result of such material conflict, material breach or material default, would
reasonably be expected to have a material, adverse affect on the Fund's
ability to perform its obligations under this Agreement or (B) materially
violates will materially violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Fund or any of its
properties or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Fund pursuant to the terms of
any agreement or instrument to which it is a party or by which it may be bound
or to which any of the property or assets of the Fund is subject, and which,
as a result of such violation or creation or imposition of any lien, charge or
encumbrance would reasonably be expected to have a material, adverse affect on
the Fund's ability to perform its obligations under this Agreement. As of the
date hereof, the Fund is not subject to any order of any court or of any
arbitrator, governmental authority or administrative agency.
(g) Since the date as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein,
(i) there has been no material, adverse change in the condition (financial or
other), general affairs, business, properties, net assets or results of
operations of the Fund or business prospects (other than as a result of a
change in the financial markets generally) of the Fund, whether or not arising
in the ordinary course of business, (ii) there have been no transactions
entered into by the Fund other than those in the ordinary course of its
business as described in the Prospectus and (iii) except as previously
disclosed in writing to the Distributor, there has been no dividend or
distribution of any kind declared, paid or made by the Fund on any class of
its shares of beneficial interest.
(h) The accountants, Ernst & Young LLP, who have audited the
statement of assets and liabilities included in the Registration Statement and
the Prospectus (and any amendment or supplement thereto), have advised the
Board of Trustees of the Fund and the Investment Adviser that they are an
independent public accounting firm as required by the 1933 Act, the 1940 Act
and the Rules and Regulations.
(i) The financial statements, together with their related schedules
(if any) and notes included in the Registration Statement or the Prospectus
present fairly in all material respects the financial position of the Fund on
the basis stated in the Registration Statement at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved
except as disclosed therein; and the other financial and statistical
information and data included in the Registration Statement or the Prospectus
are accurately derived in all material respects from such financial statements
and the books and records of the Fund.
(j) The Fund has taken all required action under the 1933 Act, the
1940 Act and the Rules and Regulations to consummate the sale of the Shares as
contemplated by this Agreement.
(k) The execution and delivery of and the performance by the Fund of
its obligations under this Agreement and the Fund Agreements have been duly
and validly authorized by the Fund and this Agreement and the Fund Agreements
have been duly executed and delivered by the Fund and each constitutes the
valid and legally binding agreement of the Fund, enforceable against the Fund
in accordance with its terms, except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws and subject to
the qualification that the enforceability of the Fund's obligations hereunder
and thereunder may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights generally
and by general equitable principles.
(l) Except as disclosed in or contemplated by the Registration
Statement or the Prospectus, subsequent to the respective dates as of which
such information is given in the Registration Statement and the Prospectus,
the Fund has not incurred any material liability or material obligation,
direct or contingent or entered into any transaction, not in the ordinary
course of business, and there has not been any material change in the shares
of beneficial interest or material increase in the short-term debt or
long-term debt of the Fund or any material, adverse change in the condition
(financial or other), general affairs, business or properties of the Fund.
(m) The Fund has not distributed and, without the consent of the
Distributor, will not distribute to the public any offering material in
connection with the offering and sale of the Shares other than the
Registration Statement, the Prospectus and sales material filed with the NASD.
(n) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own its
property and to conduct its business in the manner described in the
Prospectus; the Fund has fulfilled and performed all its material obligations
with respect to such permits and no event has occurred which allows or, after
notice or lapse of time, would allow, revocation or termination thereof or
results in any other material impairment of the rights of the Fund under any
such permit, subject in each case to such qualification as may be set forth in
the Prospectus; and, except as described in the Prospectus, none of such
permits contains any restriction that is materially burdensome to the Fund.
(o) [Reserved.]
(p) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of any
patents, patent licenses, trademarks, service marks or trade names which it
does not own, possess or license.
(q) Except as stated in this Agreement and in the Prospectus, the
Fund has not taken and will not take, directly or indirectly, any action
designed to or which should reasonably be expected to cause or result in or
which will constitute stabilization or manipulation of the price of the Shares
in violation of federal securities laws and the Fund is not aware of any such
action taken or to be taken by any affiliates of the Fund.
(r) The Fund is duly registered under the 1940 Act and Rules and
Regulations as a closed-end, non-diversified management investment company and
the 1940 Act Notification has been duly filed with the Commission and, at the
time of filing thereof and at the time of filing any amendment or supplement
thereto, conformed in all material respects with all applicable provisions of
the 1940 Act and the Rules and Regulations; no order of suspension or
revocation of such registration under the 1940 Act and the Rules and
Regulations has been issued or proceedings therefor initiated or threatened by
the Commission. The provisions of the Agreement and Declaration of Trust and
Bylaws, and the investment policies and restrictions described in each of the
Registration Statement and the Prospectus, comply in all material respects
with the requirements of the 1940 Act and the Rules and Regulations.
(s) All advertising, sales literature or other promotional material
(including "prospectus wrappers" "broker kits," "road show slides" and "road
show scripts" authorized in writing by or prepared by the Fund for use in
connection with the offering and sale of the Shares (collectively, "sales
material")) complied and comply in all respects with the applicable
requirements of the 1933 Act, the 1933 Act Rules and Regulations and the rules
and interpretations of the NASD and, if required to be filed with the NASD
under the NASD's conduct rules, were so filed and no such sales material, when
read together with the Prospectus, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(t) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1933 Act, the 1940
Act, the Rules and Regulations, the Advisers Act of 1940, as amended (the
"Advisers Act"), and the rules and regulations of the Commission promulgated
under the Investment Advisers Act (the "Advisers Act Rules and Regulations").
(u) No holder of any security of the Fund has any right to require
registration of any Shares, or any other security of the Fund, because of the
filing of the registration statement or consummation of the transactions
contemplated by this Agreement.
6. Representations and Warranties of the Investment Adviser. The
Investment Adviser represents and warrants to you as follows:
(a) The Investment Adviser is a limited liability company duly formed
and validly existing in good standing under the laws of the State of Delaware,
with full limited liability company power and authority to own, lease and
operate its properties and to conduct its business as described in each of the
Registration Statement and the Prospectus (or any amendment or supplement to
either of them) and is duly registered and qualified to conduct business and
is in good standing in each jurisdiction or place where the nature of its
properties or conduct of its business requires such registration or
qualification, except where the failure so to register or to qualify would not
have a material, adverse affect on the condition (financial or other), general
affairs, business, properties, net assets or results of operations of the
Fund.
(b) The Investment Adviser is duly registered with the Commission as
an investment adviser under the Investment Advisers Act and is not prohibited
by the Investment Advisers Act, the 1940 Act, the Investment Advisers Act
Rules and Regulations or the 1940 Act Rules and Regulations from acting under
the Advisory Agreement or any Sub-Advisory Agreement as contemplated by the
Registration Statement or the Prospectus. There does not exist any proceeding
which would reasonably be expected to have a material, adverse affect on the
registration of the Investment Adviser with the Commission.
(c) There are no legal or governmental proceedings pending or, to the
knowledge of the Investment Adviser, threatened against the Investment
Adviser, that are required to be described in the Registration Statement or
the Prospectus but are not described as required or that could reasonably be
expected to result in any material, adverse change in the condition (financial
or other), properties, net assets or results of operations of the Investment
Adviser or that may have a material, adverse effect on the ability of the
Investment Adviser to perform its obligations under this Agreement, the
Advisory Agreement or any Sub-Advisory Agreement.
(d) Neither the execution, delivery or performance of this Agreement,
the Advisory Agreement or any Sub-Advisory Agreement by the Investment
Adviser, nor the consummation by the Investment Adviser of the transactions
contemplated hereby or thereby (i) requires the Investment Adviser to obtain
any consent, approval, authorization or other order of, or registration or
filing with, the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court, regulatory body,
administrative agency or other governmental body, agency or official having
jurisdiction over the Investment Adviser or conflicts or will conflict with or
constitutes or will constitute a material breach of or a material default
under the certificate of formation or other organizational documents of the
Investment Adviser or (ii) (A) conflicts or will conflict in a material manner
with or constitutes or will constitute a material breach of or a material
default under, any material agreement, indenture, lease or other instrument to
which the Investment Adviser is a party or by which the Investment Adviser or
any of its properties may be bound, and which, as a result of such material
conflict, material breach or material default, would reasonably be expected to
have a material, adverse affect on the Investment Adviser's ability to perform
its obligations under this Agreement, the Investment Advisory Agreement and
any Sub-Advisory Agreement, or (B) materially violates or will materially
violate any material statute, law, regulation or judgment, injunction, order
or decree applicable to the Investment Adviser or any of its properties or
will result in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Investment Adviser pursuant to
the terms of any agreement or instrument to which it is a party or by which it
may be bound or to which any of the property or assets of the Investment
Adviser is subject, and which, as a result of such conflict, material breach,
material default or creation or imposition of any lien, charge or encumbrance,
would reasonably be expected to materially and adversely affect the Investment
Advisers ability to perform its obligations under this Agreement, the
Investment Advisory Agreement and any Sub-Advisory Agreement. The Investment
Adviser is not subject to any order of any court or of any arbitrator,
governmental authority or administrative agency.
(e) The Investment Adviser has full power and authority to enter into
this Agreement, the Advisory Agreement and each Sub-Advisory Agreement, the
execution and delivery of, and the performance by the Investment Adviser of
its obligations under, this Agreement, the Advisory Agreement and each
Sub-Advisory Agreement have been duly and validly authorized by the Investment
Adviser and this Agreement, the Advisory Agreement and each Sub-Advisory
Agreement have been duly executed and delivered by the Investment Adviser and
constitute the valid and legally binding agreements of the Investment Adviser,
enforceable against the Investment Adviser in accordance with their terms,
except as rights to indemnity and contribution hereunder may be limited by
federal or state securities laws and subject to the qualification that the
enforceability of the Investment Adviser's obligations hereunder and
thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors'
rights generally and by general equitable principles whether enforcement is
considered in a proceeding in equity or at law.
(f) The Investment Adviser has the financial resources necessary for
the performance of its services and obligations as contemplated in the
Registration Statement or the Prospectus or under this Agreement, the Advisory
Agreement or any Sub-Advisory Agreement.
(g) The description of the Investment Adviser and its business, and
the statements attributable to the Investment Adviser, in the Registration
Statement or the Prospectus (or any amendment or supplement to either of them)
complied and comply in all material respects with the provisions of the 1933
Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the
Advisers Act Rules and Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading.
(h) Since the date as of which information is given in the
Registration Statement or the Prospectus, except as otherwise stated therein,
(i) there has been no material adverse change in the condition (financial or
other), general affairs, business or properties of the Investment Adviser and
(ii) there have been no transactions entered into by the Investment Adviser
which are material to the Investment Adviser other than those in the ordinary
course of its business as described in the Prospectus.
(i) The Investment Adviser has all such licenses, permits and
authorizations of governmental or regulatory authorities ("Adviser permits")
as are necessary to own its property and to conduct its business in the manner
described in the Prospectus (and any amendment or supplement thereto); the
Investment Adviser has fulfilled and performed all its material obligations
with respect to such Adviser permits and no event has occurred which allows,
or after notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights of the
Investment Adviser under any such Adviser permit.
(j) This Agreement, the Advisory Agreement and each Sub-Advisory
Agreement each comply in all material respects with all applicable provisions
of the 1940 Act, the 1940 Act Rules and Regulations, the Advisers Act and the
Advisers Act Rules and Regulations.
(k) Except as stated in this Agreement, the Registration Statement or
the Prospectus, the Investment Adviser has not taken and will not take,
directly or indirectly, any action designed to or which might reasonably be
expected to cause or result in or which will constitute stabilization or
manipulation of the price of the Shares or of any securities issued by the
Fund to facilitate the sale or resale of the Shares, in each case, in
violation of federal securities laws and the Investment Adviser is not aware
of any such action taken or to be taken by any affiliates of the Investment
Adviser.
7. Indemnification and Contribution.
(a) The Fund and the Investment Adviser, jointly and severally, agree
to indemnify and hold harmless you and each person, if any, who controls the
Distributor within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, from and against any and all losses, claims, damages,
liabilities and expenses, joint or several (including reasonable costs of
investigation), arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
the Prospectus, or any sales material or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating to
the Distributor or Selling Agents furnished in writing to the Fund by or on
behalf of the Distributor through you expressly for use in connection
therewith. The foregoing indemnity agreement shall be in addition to any
liability which the Fund or the Investment Adviser may otherwise have.
(b) If any action, suit or proceeding shall be brought against the
Distributor or any person controlling the Distributor in respect of which
indemnity may be sought against the Fund or the Investment Adviser, the
Distributor or such controlling person shall promptly notify the Fund and the
Investment Adviser and the Fund or the Investment Adviser shall assume the
defense thereof, including the employment of counsel and the payment of all
fees and expenses. The Distributor or any such controlling person shall have
the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the Distributor or controlling person
unless (i) the Fund or the Investment Adviser have agreed in writing to pay
such fees and expenses, (ii) the Fund and the Investment Adviser have failed
within a reasonable time to assume the defense and employ counsel or (iii) the
named parties to any such action, suit or proceeding (including any impleaded
parties) include both the Distributor or such controlling person and the Fund
or the Investment Adviser and the Distributor or such controlling person shall
have been advised by its counsel that representation of such indemnified party
and the Fund or the Investment Adviser by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or
not such representation by the same counsel has been proposed) due to actual
or potential differing interests between them (in which case the Fund and the
Investment Adviser shall not have the right to assume the defense of such
action, suit or proceeding on behalf of the Distributor or such controlling
person). It is understood, however, that the Fund and the Investment Adviser
shall, in connection with any one such action, suit or proceeding or separate
but substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel if there is any action, suit or
proceeding in more than one jurisdiction) at any time for all the Distributor
and controlling persons not having actual or potential differing interests
with you or among themselves, which firm shall be designated in writing by the
Distributor and that, subject to the requirements of 1940 Act Release No.
11330, all such fees and expenses shall be reimbursed promptly as they are
incurred. The Fund and the Investment Adviser shall not be liable for any
settlement of any such action, suit or proceeding effected without the written
consent of the Fund or the Investment Adviser, but if settled with such
written consent or if there be a final judgment for the plaintiff in any such
action, suit or proceeding, the Fund and the Investment Adviser agree to
indemnify and hold harmless the Distributor, to the extent provided in the
preceding paragraph and any such controlling person from and against any loss,
liability, damage or expense by reason by such settlement or judgment.
(c) The Distributor agrees to indemnify and hold harmless the Fund
and the Investment Adviser, their trustees, manager(s) and members, as the
case may be, any officers of the Fund who sign the Registration Statement and
any person who controls the Fund or the Investment Adviser within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, to the same
extent as the foregoing indemnity from the Fund and the Investment Adviser to
the Distributor, but only with respect to information relating to the
Distributor furnished in writing by or on behalf of the Distributor through
you expressly for use in the Registration Statement or the Prospectus. If any
action, suit or proceeding shall be brought against the Fund or the Investment
Adviser, any of their directors, any such officer or any such controlling
person, based on the Registration Statement or the Prospectus and in respect
of which indemnity may be sought against the Distributor pursuant to this
paragraph (c), the Distributor shall have the rights and duties given to each
of the Fund and the Investment Adviser by paragraph (b) above (except that if
the Fund or the Investment Adviser shall have assumed the defense thereof the
Distributor shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the Distributor's expense) and the Fund and the
Investment Adviser, their trustees, members any such officer and any such
controlling person shall have the rights and duties given to the Distributors
by paragraph (b) above. The foregoing indemnity agreement shall be in addition
to any liability which the Distributors may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or expenses (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Fund and the Investment Adviser on the one hand (treated jointly for
this purpose as one person) and the Distributor on the other from the offering
of the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Fund and the Investment Adviser on the one hand (treated
jointly for this purpose as one person) and of the Distributor on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Fund and the
Investment Adviser on the one hand (treated jointly for this purpose as one
person) and the Distributor on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Fund bear to the total underwriting discounts and
commissions received by the Distributor. The relative fault of the Fund and
the Investment Adviser on the one hand (treated jointly for this purpose as
one person) and of the Distributor on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Fund and the Investment
Adviser on the one hand (treated jointly for this purpose as one person) or by
the Distributor on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) The Fund, the Investment Adviser and the Distributor agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating any claim or defending any
such action, suit or proceeding. Notwithstanding the provisions of this
Section 7, the Distributor shall not be required to contribute any amount in
excess of the amount by which the total price of the Shares distributed by it
and distributed to the public exceeds the amount of any damages which the
Distributor has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇
▇▇▇) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability from claimants on claims that are
the subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Fund and the Investment Adviser set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of the Distributor or
any person controlling the Distributor, the Fund, the Investment Adviser or
their manager(s), trustees or officers, as the case may be, or any person
controlling the Fund or the Investment Adviser, (ii) acceptance of any Shares
and payment therefor hereunder and (iii) any termination of this Agreement. A
successor to the Distributor or to the Fund, the Investment Adviser or their
manager(s), trustees or officers, as the case may be, or any person
controlling the Fund or the Investment Adviser shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 7.
8. Conditions of Distributor's Obligations. The obligation of the
Distributor to distribute any Shares are subject to, in the good faith
judgment of the Distributor, the accuracy of and compliance with the
representations, warranties and agreements of and by the Fund and the
Investment Adviser contained herein on and as of the date of this Agreement,
the Initial Closing Date or any Additional Closing Date; and to the following
conditions:
(a) There shall not have occurred (i) any change or any development
involving a prospective change in or affecting the condition (financial or
other), business, general affairs, properties, net assets, or results of
operations of the Fund or the Investment Adviser not contemplated by the
Prospectus, which in your opinion, would materially adversely affect the
market for the Shares, or (ii) any event or development relating to or
involving the Fund or the managing member or any member or officer of the
Investment Adviser or any officer or director of the Fund or the Investment
Adviser which makes any statement made in the Prospectus untrue or which, in
the opinion of the Fund and its counsel or the Distributor, requires the
making of any addition to or change in the Prospectus in order to state a
material fact required by the 1933 Act, the 1940 Act or the Rules and
Regulations or any other law to be stated therein or necessary in order to
make the statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion,
materially adversely affect the market for the Shares.
(b) (i) No order suspending the effectiveness of the registration
statement or the Registration Statement or prohibiting or suspending the use
of the Prospectus or any sales material shall have been issued and no
proceedings for such purpose or for the purpose of commencing an enforcement
action against the Fund, the Investment Adviser or, with respect to the
transactions contemplated by the Prospectus and this Agreement may be pending
before or, to the knowledge of the Fund, the Investment Adviser or the
Distributor, shall be threatened or contemplated by the Commission, (ii) there
shall not have been any change in the capitalization of the Fund nor any
material increase in debt of the Fund from that set forth in or contemplated
by the Fund's then effective Registration Statement or the Prospectus and the
Fund shall not have sustained any material liabilities or obligations, direct
or contingent, other than those reflected in or contemplated by the Fund's
then effective Registration Statement or the Prospectus; (iii) there shall not
have been any material, adverse change in the condition (financial or other),
general affairs, business, prospects, properties, net assets or results of
operations of the Fund or the Investment Adviser not disclosed in or
contemplated by the Fund's then effective Registration Statement or the
Prospectus; (iv) the Fund or the Investment Adviser must not have sustained
any material loss or interference with their businesses from any court or from
legislative or other governmental action, order or decree or from any other
occurrence not described in or contemplated by the Fund's then effective
Registration Statement or the Prospectus; and (v) all of the representations
and warranties of the Fund and the Investment Adviser contained in this
Agreement shall be true and correct in all material respects on and as of any
Closing Date as if made on and as of the date hereof.
(c) That none of the Fund or the Investment Adviser shall have failed
at or prior to any Closing Date to have performed or complied with any of the
agreements herein contained and required to be performed or complied with by
them at or prior to such Closing Date.
(d) That the Fund and the Investment Adviser shall have furnished to
you such certificates and documents as you shall reasonably request (including
certificates of officers of the Fund and the Investment Adviser).
All such certificates other documents will be in compliance with the
provisions hereof only if they are satisfactory in form and substance to you
and your counsel acting in good faith.
Any certificate or document signed by any officer of the Fund or the
Investment Adviser and delivered to you, as Distributor, shall be deemed a
representation and warranty by the Fund or the Investment Adviser to each
Selling Agent as to the statements made therein.
9. [Reserved].
10. Termination of Agreement.
(a) This Agreement shall be subject to termination in your absolute
discretion, without liability on the part of the Distributor to the Fund or
the Investment Adviser by notice to the Fund or the Investment Adviser if (i)
trading in securities generally on the New York Stock Exchange, American Stock
Exchange, Nasdaq National Market, Nasdaq SmallCap Market or the Nasdaq Stock
Market shall have been suspended or limited or minimum prices shall have been
established (ii) additional governmental restrictions not in force on the date
of this Agreement have been imposed upon trading in securities generally
(except for any governmental restrictions already adopted with delayed
effective dates) or a general moratorium on commercial banking activities
shall have been declared by federal or any state's authorities or (iii) any
outbreak or material escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial, economic, legal
or regulatory conditions, occurs, the effect of which is such as to make it,
in your judgment, impracticable or inadvisable to commence or continue the
offering of Shares. Notice of such termination may be given to the Fund or the
Investment Adviser by telegram, telecopy or telephone but shall be
subsequently confirmed by letter.
(b) In the event of termination of this Agreement in accordance with
the foregoing clause (a) during the period of time immediately prior to any
Closing that trade details have been transmitted to the Fund/SERV System, the
Fund agrees to cause its custodian to immediately reimburse each investor on
the Closing Date (or such other date that the Fund/SERV System settles the
purchase and sale of Shares) the dollar amount previously paid to the Fund for
the purchase of Shares by such investors.
(c) After the Initial Closing Date, this Agreement shall continue in
full force and effect until terminated by a written instrument executed by
each of the parties hereto; provided, however, that the Distributor's
obligation to provide shareholder services with respect to any Shares held by
the Distributor for its clients' accounts shall continue in effect until
terminated by a written instrument setting forth the mutual agreements of the
Fund and the Distributor for the disposition of any Shares held by the
Distributor for its clients' accounts.
11. Expenses. The Fund agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by the Fund of
its obligations hereunder: (a) the preparation, printing or reproduction,
filing (including without limitation the filing fees prescribed by the 1933
Act, the 1940 Act and the Rules and Regulations) and distribution of the
Registration Statement (including exhibits thereto), the Prospectus and the
1940 Act Notification and all amendments or supplements to any of them, (b)
the printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, the Prospectus, any sales material (and all amendments
or supplements to any of them) as may be reasonably requested for use in
connection with the offering and sale of the Shares, (c) the preparation,
printing, authentication, issuance and delivery of certificates (if any) for
the Shares, including any stamp taxes and transfer agent and registrar fees
payable in connection with the original issuance and sale of such Shares, (d)
the registrations or qualifications of the Shares for offer and sale under the
securities or Blue Sky laws of the several states as provided in Section 5(g)
hereof (including the reasonable fees, expenses and disbursements of counsel
for the Distributor relating to the preparation, printing or reproduction and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification), (e) the fees and expenses of the Fund's
independent accountants, counsel for the Fund and of the Fund's transfer
agent, (f) the expenses of delivery to the Distributor and Selling Agents
(including postage, air freight and the cost of counting and packaging) of
copies of the Prospectus, any sales material and all amendments or supplements
to the Prospectus as may be requested for use in connection with the offering
and sale of the Shares, and (g) the printing (or reproduction) and delivery of
this Agreement, any dealer agreements, the preliminary and supplemental Blue
Sky Memoranda and all other company-authorized agreements or other documents
printed (or reproduced) and delivered in connection with the offering of the
Shares.
12. Miscellaneous. Except as otherwise provided herein, notice given
pursuant to any provision of this Agreement shall be in writing and shall be
delivered (a) if to the Fund or the Investment Adviser, c/o Advantage
Advisers, L.L.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with copies to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; (b) if to you, at the office of [ ], ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Counsel.
This Agreement has been and is made solely for the benefit of the
Distributor, the Fund, the Investment Adviser, their trustees or directors,
managers, members and officers and the other controlling persons referred to
in Section 7 hereof and their respective successors and assigns, to the extent
provided herein and no other person shall acquire or have any right under or
by virtue of this Agreement. Neither the term "successor" or the term
"successors and assigns" as used in this Agreement shall include a purchaser
from the Distributor or any Selling Agent of any of the Shares in his status
as such purchaser.
13. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
Please confirm that the foregoing correctly sets forth the agreement
among the Fund, the Investment Adviser and the Distributor
Very truly yours,
ADVANTAGE ADVISERS
MULTI-SECTOR FUND I
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
ADVANTAGE ADVISERS, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇▇▇▇ & CO., INC.
By:
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Name:
Title: