ROCHDALE STRUCTURED CLAIMS FIXED INCOME FUND, LLC SELLING GROUP AGREEMENT
ROCHDALE
STRUCTURED CLAIMS
FIXED
INCOME FUND, LLC
______________________________________
Name of
Firm
______________________________________
Address
of Principal Office
______________________________________
City
State Zip Code
Ladies
and Gentlemen:
We are
the principal underwriter, as defined in the Investment Company Act of 1940, in
connection with the private placement of the units of limited liability interest
of the Rochdale Structured Claims Fixed Income Fund, LLC (the “Fund”), a
Delaware limited liability company. The Fund issues one class of
Units. For purposes of this Selling Group Agreement (the
“Agreement”), all units of limited liability interest of the Fund are referred
to as the “Units.” We understand that you are a member of the
Financial Industry Regulatory Authority (“FINRA”) and, on the basis of such
understanding, invite you to become a member of the Selling Group to assist in
the private placement of the Units of the Fund. RIM Securities LLC
(“RIM”) and
(collectively referred to as “the Parties”) agree on the following terms and
conditions:
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1.
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Both
Parties certify that each is a member, in good standing, of FINRA and
agree to maintain membership in FINRA. Each Party agrees to
abide by the Constitution and By-Laws, of FINRA and all the rules and
regulations of FINRA concerning the distribution of the securities of
close-end investment companies and engaging in the private
placements of securities in reliance upon exemptions from registration
under the Securities Act of 1933, as amended (the “Securities Act”),
including without limitation, FINRA Conduct Rule 2830 and FINRA Rule 5122,
all of which are incorporated herein as if set forth in full, and all
other rules and regulations that are now or may become applicable to
transactions hereunder.
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2.
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The
Parties acknowledge and agree that the Fund will offer, sell and issue its
Units, pursuant to the Fund’s then current Confidential Private Placement
Memorandum as amended or supplemented from time to time (the “Offering
Memorandum”) in an offering exempt from registration under the Securities
Act pursuant to Section 4(2) thereof and Regulation D promulgated
thereunder.
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3.
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Orders
for Units received from you and accepted by RIM will be at the offering
price applicable to each order in accordance with the Offering Memorandum,
which may include a sales charge. The procedure relating to the
handling of orders shall be subject to instructions that RIM shall forward
from time to time to all members of the Selling Group. All
orders are subject to acceptance by RIM and we reserve the right in our
sole discretion to reject any order in whole or in
part.
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6
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4.
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You
shall be entitled to receive from the offering price of Units (“Load
Units”) sold subject to a sales charge by you the portion of sales
commission (the “Dealer Reallocation”) on such Units that is to be
retained by selling dealers as set forth in the Offering Memorandum,
except during any period designated by RIM as a period during which Units may be
purchased without a sales commission. Unless otherwise
expressly set forth in the Offering Memorandum, there shall be no Dealer
Reallocation payable on any purchase of Units made at the then current net
asset value and to which no sales charge applied, including but not
limited to the direct reinvestment of any distributions made by the
Fund. Our liability is solely limited to the proceeds of the
concession receivable from the Fund and payments to you. In the
case of Load Units, this shall be made quarterly after the end of the
calendar quarter for which reimbursement is being
made.
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5.
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In
addition, the Fund may remit to RIM a service fee at the annual rate of
0.25% of the average daily net
assets of the Load Units of the Fund. You may be entitled to
compensation for investor services to the extent permitted by the Fund
under the Investment Company Act of
1940.
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6.
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As
a member of the Selling Group, you agree to purchase Units only through
RIM or from your customers. Purchases through RIM shall be made
only for the purpose of covering
purchase orders already received from your customers, and RIM agrees that
we will not place orders for the purchase of Units from the Fund except to
cover purchase orders already received by RIM. Purchases from
your customers shall be at a price not less than the net asset value
quoted by the Fund at the time of such
purchase.
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7.
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You
agree that you will not withhold placing customers’ orders in an attempt
to profit from such withholding.
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8.
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You
agree to sell Units only (a) to your customers at the offering price then
in effect or (b) to RIM as agent
for the Fund or to the Fund itself at the redemption price, as described
in the Offering
Memorandum.
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9.
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You
agree that the Fund can only be sold to customers that you reasonably
believe will qualify as “Qualified Investors,” as described in the
Offering Memorandum. In general, a Qualified Investor is
someone who qualifies as an “Accredited Investor,” as that term is defined
in Regulation D under the Securities Act. In addition, you
agree that you will only solicit customers with which you have a
pre-existing business or personal
relationship.
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10.
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In
soliciting customers, you agree not to recommend the purchase of Units to
any prospective customer unless you have reasonable grounds to believe,
based upon information received from the customer concerning, amongst
other things, the customer’s investment objectives, other investments,
financial situation and needs, that the customer is or will be in a
financial position appropriate to enable the customer to realize the
benefits of an investment in the Fund; that the customer has the fair
market net worth sufficient to sustain the risks inherent in investing in
the Fund, including the loss of investment and the lack of liquidity; and
that the Units are a suitable investment for the
customer.
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Page 2 of
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11.
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You
agree that you will not conduct a “general solicitation” or “general
advertising” as defined in Regulation D under the Securities Act, or act
in any manner involving a public offering within the meaning of Section
4(2) of the Securities Act, and that any solicitation or referral activity
will be conducted in accordance with the requirements of such Regulation D
and applicable laws. For purposes of this provision, a “general
solicitation” or “general advertising” includes but is not limited to, any
advertisements, articles, notices or other communications published in any
newspaper, magazine, or similar media, or broadcast over television or
radio. It also includes any seminar or meeting whose
participants have been invited by means of any a general solicitation or
general advertising.
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12.
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You
will maintain a list of all customers and prospective customers with whom
you have provided an Offering Memorandum or otherwise solicited an
investment in the Fund, including the date such customer or prospective
customer was initially contacted about an investment in the
Fund. Upon our request, you will provide us with such
information if necessary to maintain the Fund’s exemption from
registration under the Securities Act. Any such information
received by us will be fully covered by the confidentiality provisions
contained in Paragraph 20 below.
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13.
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You
acknowledge that the offering of Units is on a “best efforts”
basis. Consummation of the offering is conditioned upon the
subscription of Units valued, in the aggregate, of at least $20,000,000 by
March 1, 2010 (subject to extension for up to 30 days in the discretion of
the Fund). Pending investment in the Fund, the proceeds of the
offering will be placed by the Fund in an interest-bearing escrow account,
pending the closing of such offering. After any closing, the
balance in the escrow account will be invested pursuant to the Fund’s
investment policies as soon as reasonably practicable. If the
minimum subscription amount is not achieved, all subscription payments
held in escrow will be repaid to subscribing customers as promptly after
the end of the offering period as is
practicable.
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14.
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Settlements
of the Units are handled
in the same manner as investments in partnerships, hedge funds or funds of
hedge funds. Therefore, settlement may take several weeks and
will occur at the earliest possible
moment.
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15.
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Redemption
of the Units by the Fund
is not required and can only occur in
accordance with the terms of the Offering Memorandum.Accordingly,
an investment in the Fund should be viewed as an illiquid, long-term
investment.
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16.
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All
sales will be subject to receipt of Units by RIM from the
Fund. We reserve the right in our discretion without notice to
you to suspend sales or withdraw the offering of Units entirely, or to
modify or cancel this Agreement, which shall be construed in accordance
with the laws of the State of New York. All sales shall be
subject to the terms and provisions set forth in the Fund’ then current
Offering Memorandum relating to the
Units.
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17.
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No
person is authorized to make any representations concerning the Fund or
the Units except those contained in the Offering Memorandum and any such
information as may be
released by the Fund as information expressly supplemental to such
Offering Memorandum. In purchasing Units through RIM, you shall
rely solely on the representations contained in the Offering Memorandum
and supplemental information mentioned
above.
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18.
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Additional
copies of any such Offering Memorandum and any printed information issued
as supplemental to such Offering Memorandum will be supplied by RIM to
members of the Selling Group in reasonable quantities upon
request.
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19.
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In
no transaction shall you have any authority whatever to act as agent of
the Fund or of RIM or of any other member of the Selling Group, and
nothing in this Agreement shall constitute
either Party as the agent of the other or shall constitute you or the Fund
the agent of the other. In all transactions in the Units
between the Parties, we are acting as agent for the Fund and not as
principal.
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20.
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We
acknowledge that the names and addresses and other information concerning
your customers are not our
property, and RIM will not, nor will our affiliates, use such names,
addresses or other information for any purpose except in connection with
the performance of our duties and responsibilities hereunder and except
for providing servicing and informational mailings to the
Fund. Notwithstanding the foregoing, this paragraph shall not
prohibit RIM or any of our affiliates from using the names of your
customers for any purpose if such names and addresses are obtained in any
manner other than from you pursuant to this
Agreement.
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21.
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All
communications to RIM shall be sent to the address set forth
below. Any notice to you shall be duly given if mailed or
electronically sent to you at your address as registered from time to time
with FINRA.
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22.
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This
Agreement may be terminated upon written notice by either party at any
time, and shall automatically
terminate upon its attempted assignment by you, whether by operation of
law or otherwise, or by RIM otherwise than by operation of
law. This Agreement shall also terminate automatically under
circumstances set forth in Paragraph 24 of this
Agreement.
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23.
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We
reserve the right, from time to time and for limited periods, to increase
the sales commission you are
entitled to receive under Paragraph 4, but in no event will such sales
commission be in excess of the maximum sales commission as set forth in
the then current Offering Memorandum relating to the
Units.
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24.
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By
accepting this Agreement, you represent that you are registered as a
broker-dealer under the Securities Exchange Act of l934, are qualified to
act as a dealer in the states or other jurisdictions
where you transact business, and are a member in good standing of FINRA
and you agree that you will maintain such registrations, qualifications,
and membership in good standing in full force and effect throughout the
term of this Agreement. You further agree to comply with all
applicable Federal laws, the laws of the states or other jurisdictions
concerned, the rules and regulations promulgated thereunder and the
Constitution, By-Laws and Rules of Fair Practice of FINRA and that you
will not offer or sell Units in any state or jurisdiction where they may
not lawfully be offered and/or sold by you. You agree to
indemnify RIM and the Fund and to hold RIM and the Fund harmless from any
damage or expense on account of any wrongful act or omission, not in
compliance with this Agreement by you or any of your employees,
representatives or agents. If you are offering and selling
Units in jurisdictions outside the several states, territories, and
possessions of the United States and are not otherwise required to be
registered, qualified, or a member of FINRA, as set forth above, you
nevertheless agree to observe the applicable laws of the jurisdiction in
which such offer and/or sale is made, to comply with the full disclosure
requirements of the Securities Act and the regulations promulgated
thereunder, to conduct your business in accordance with the spirit of the
Rules of Fair Practice of FINRA and to obey all applicable laws and
regulations. Your expulsion from FINRA will automatically
terminate this Agreement without notice. Your suspension from
FINRA or a violation by you of applicable state and federal laws and
regulations of authorized regulatory agencies will terminate this
Agreement effective upon notice received by you from
RIM.
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Page 4 of
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25.
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This
Agreement shall become effective upon receipt by RIM of a signed copy
hereof, and shall supersede any and all prior Selling Group agreements
relating to the Units. All amendments to
this Agreement shall take effect with respect to and on the date of any
orders placed by you after the date set forth in the notice of amendment
sent to you by the
undersigned.
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26.
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The
Parties to this Agreement hereby agree to indemnify and hold harmless each
other, their officers and directors, and any person who is or may be
deemed to be a controlling person of each other, from and against any
losses, claims, damages, liabilities or expenses (including reasonable
fees of counsel) to which any such person or entity may become subject
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) arise out of or are based upon (a) any untrue
statement or alleged untrue statement of material fact, or any omission or
alleged omission to state a material fact made or omitted by it, or (b)
any willful misfeasance or gross misconduct by it in the performance of
its duties and obligations
hereunder.
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27.
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This
Agreement shall be governed by and construed in accordance with the law of
the State of New York (excluding the law thereof which required the
application of or reference to the law of any other
jurisdiction). Any action or proceeding arising directly,
indirectly, or otherwise in connection with, out of, related to, or from
this Agreement, any breach hereof, or any transaction covered hereby,
shall be resolved by arbitration, within the City of New York and State of
New York. In any such action or proceeding, the prevailing party shall be
entitled to recovery of all reasonable attorneys’ fees incurred with
respect thereto. The Parties recognize that all broker dealers
must use FINRA arbitration to resolve disputes relating to the activities
of a broker dealer.
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28.
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You
acknowledge that RIM may enter into similar agreements with others without
your consent.
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If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder shall not be affected
thereby.
[The Remainder of this Page was
Intentionally Left Blank.]
Page 5 of
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RIM
Securities LLC
By:
Print
Name:
Title:
Date:
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The
undersigned accepts your invitation to become a member of the Selling
Group and agrees to abide by the foregoing terms and
conditions. The undersigned acknowledges receipt of Offering
Memorandum of the Fund for use in connection with this
offering.
By:
Print
Name:
Title:
Date:
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This
Agreement should be executed in duplicate and both copies returned
to
RIM
Securities LLC
Attn: ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
New
York, NY 10022-6837
We will execute and return an
original for your files.
Page 6 of
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Appendix
A
Cusip Ticker
Rochdale
Structured Claims Fixed Income Fund, LLC