Placement Agency Agreement
This
Placement Agency Agreement (the "Agreement"), dated as of January 29, 2010, is
by and between The Salient Absolute Return Master Fund, a Delaware statutory
trust (the "Fund"), and Salient Capital, L.P. (the "Agent").
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WHEREAS,
the Fund have requested the Agent to act as a non-exclusive placement agent of
the Fund for the placement of Shares in the Fund (the "Shares");
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WHEREAS,
the Agent has indicated its willingness to act as a non-exclusive placement
agent of the Fund for the placement of the Shares;
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NOW,
THEREFORE, in consideration of the mutual promises contained herein, the receipt
and sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
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1.ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAppointment as Placement
Agent.
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(a)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Fund hereby appoints the Agent to act as a non-exclusive placement agent for the
placement of Shares, as provided in Section 3, during the term of this
Agreement.
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(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýIn
soliciting the purchase of the Shares in accordance with clause (a) of this
Section 1, the Agent shall act as agent for the Fund.ÌýÌýThe Agent shall
make reasonable efforts to assist the Fund in attracting investments by
prospective holders of Shares ("Clients"). The Agent shall have no liability to
the Fund in the event any purchase of Shares is not consummated for any
reason.
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(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Fund and the Agent agree that any Shares the placement of which the Agent
arranges shall be placed by the Agent in reliance on the representations,
warranties, covenants and agreements of the Fund contained herein and on the
terms and conditions and in the manner provided herein.
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2.ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýCompensation of the Agent;
Expenses.
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(a)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Agent shall not receive any fees, sales commissions or charges, or other
compensation from the Fund or a holder of Shares ("Partner") for the services
that the Agent provides under this Agreement.
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(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Fund shall bear all costs of qualifying the Shares for offer and sale with state
and other regulatory bodies, and shall assume expenses related to communications
with Partners, including (i) fees and disbursements of its counsel and
independent public accountant; (ii) the preparation, filing and printing of the
Fund's offering memorandum, and any supplements or amendments thereto, for use
in connection with the offering of Shares (the "Fund Prospectus"); and (iii) the
preparation and mailing of annual and interim reports, the Fund’s Prospectus and
proxy materials to Partners.
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(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Agent shall bear all costs and expenses that it incurs in connection with the
offer and sale of Shares, including the costs and expenses of (i) preparing,
printing and distributing any materials not prepared by the Fund and other
materials used by the Agent in
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connection
with the offer and sale of Shares, including the additional cost of printing
copies of the Fund’s Prospectus other than copies thereof required for
distribution to existing Partners or for filing with any federal or state
securities authorities; (ii) any expenses of advertising incurred by the Agent
in connection with such offering; and (iii) all compensation paid to the Agent's
employees representatives and others for selling Shares, and (iv) all expenses
of the Agent, its employees, representatives and others who engage in or support
the sale of Shares as may be incurred in connection with their sales
efforts.
3.ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýOffer and Sale of
Shares.
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The offer
and sale of Shares is to be effected pursuant to the exemption from the
registration requirements of the Securities Act of 1933, as amended (the "1933
Act"), provided by Section 4(2) thereof and the regulations thereunder. Offers
and sales of the Shares by the Fund will be made in accordance with the general
provisions of Regulation D under the 1933 Act ("Regulation D"). As used in this
Agreement, the terms "offer" and "sale" have the meanings specified in Section
2(3) of the ▇▇▇▇ ▇▇�.
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The Agent
shall not have any rights or obligations in connection with the offer and sale
of Shares contemplated by this Agreement, except as expressly provided in this
Agreement. In no event shall the Agent be obligated to purchase Shares for its
own account or for the accounts of its customers.
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4.ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýRepresentations of the
Agent.
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The Agent
agrees with the Fund that from and after the date hereof and until the
termination of this Agreement:
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(a)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Agent shall offer Shares only in accordance with the terms and conditions set
forth in this Agreement, the Fund’s Prospectus and the First Amended and
Restated Agreement and Declaration of Trust of the Fund (the " Declaration of
Trust").
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(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Agent shall offer the Shares only to a person that it reasonably believes to be
an "accredited investor" as defined in Regulation D within the meaning of Rule
205-3 under the Investment Advisers Act of 1940, as amended.
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(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Agent shall comply with all laws and regulations, including all applicable
federal and state laws and regulations relating to broker-dealer registration
and/or licensure, applicable to its respective activities and investments,
including those activities undertaken in connection with its performance under
this Agreement.
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(d)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Agent may provide copies of the Fund’s Prospectus and unexecuted copies of the
Declaration of Trust and the investor certification form employed by the Fund
("Investor Certification") to any prospective Client.ÌýÌýThe Agent
agrees not to provide any other written communications regarding the Fund to any
party, except as previously approved in writing by the Fund. If at any time the
Fund determines to issue a supplement to the Fund’s Prospectus, the Agent shall
distribute that supplement to each person who has previously received a copy of
the Fund’s Prospectus from the Agent, and the Agent farther agrees to include
the supplement in all future deliveries of the Fund’s Prospectus.
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(e)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAfter
identifying any prospective Client, the Agent shall provide written notice, via
electronic mail or otherwise, of that fact to the Fund or its delegate, before
making a presentation to the prospective Client. Within 5 business days after
receiving such notice, the Fund, or its delegate, will respond to the Agent in
writing either authorizing the Agent to or prohibiting the Agent from making a
presentation to the prospective Client. In the event that the Fund or its
delegate does not respond to the Agent within 5 business days, the Agent may
presume that it is authorized to make a presentation to the prospective Client.
However, the Fund is not obligated to accept for investment in the Fund
prospective Clients identified by the Agent, and may reject such prospective
Clients for any reason.
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(e)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Agent shall not make any representation, warranty or any other statement
regarding the Fund, the Fund's investment adviser, or any employee, agent,
representative or affiliated person (each an "Affiliate") (as that term is
defined in Section 2(a)(3) of the Investment Company Act of 1940, as amended
("1940 Act")) of the foregoing except as set forth in the Fund’s
Prospectus.
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(g)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýWith
respect to each prospective Client who determines to purchase Shares, the Agent
shall obtain copies of the Declaration of Trust and the Investor Certification
as completed and executed by the prospective Client.ÌýÌýAfter obtaining
such copies from a prospective Client, the Agent shall deliver them to the
Fund.
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(h)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Agent agrees not to make a general solicitation with respect to the offering
contemplated under the Fund’s Prospectus and otherwise agrees to conduct the
same in accordance with Section 4(2) and Regulation D.
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(i)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Agent agrees to timely provide the Fund with information sufficient to permit
the Fund to file on a timely basis all reports required under the federal
securities laws and applicable state laws.
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5.ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýRepresentations of the
Fund.
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The Fund
agree with the Agent that from and after the date hereof and until the
termination of this Agreement:
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(a)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Fund shall not, directly or indirectly, make any offer or sale of any Shares, or
other securities of the same or similar class, the result of which would cause
the offer and sale of Shares to fail to be entitled to the exemption from
registration afforded by Section 4(2) of the 1933 Act, including Regulation D
thereunder.
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(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Fund shall be solely responsible for the contents of the Fund’s Prospectus and
any and all other written or oral communications provided by or on behalf of the
Fund (other than by the Agent or any of its Affiliates) to any Partners, Clients
or prospective Clients, and the Fund represents and warrants that the Fund’s
Prospectus and such other communications shall not, as of the date of the offer
or sale of Shares, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The Fund shall provide copies of the Fund’s Prospectus,
the Declaration of Trust and the Investor Certification to the Agent for use
with prospective Clients. The Fund reserves the right,
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in its
sole discretion, to direct the Agent not to provide copies of any or all of
these documents to any prospective Client.
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If at any
time prior to the completion of the offer and sale of Shares an event occurs
which would cause the Fund’s Prospectus to contain an untrue statement of a
material fact or to omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, the Fund will notify the Agent immediately of such event and the
Agent will suspend the offer and sale of Shares until such time as the Fund
shall prepare a supplement or amendment to the Fund’s Prospectus which corrects
such statement or omission.
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6.ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýIndemnification.
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(a)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Fund agrees to indemnify and hold harmless the Agent and each person, if any,
who controls the Agent within the meaning of the 1940 Act ("Agent Control
Person"), against any losses, claims, damages, liabilities, or expenses
(including, unless the Fund elects to assume the defense as hereinafter
provided, the reasonable cost of investigating and defending against any claims
therefor and counsel fees incurred in connection therewith), joint or several
(for purposes of this paragraph, "Losses"), which: (1) are based on the ground
or alleged ground that the Fund’s Prospectus or any supplemental sales material
supplied or approved in writing by an officer of the Fund (provided that such
supplemental sales material is accompanied or preceded by the Fund’s
Prospectus), includes or allegedly includes an untrue statement of material fact
or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, unless such statement or omission (i) was made in reliance upon, and
in conformity with, information furnished to the Fund by or on behalf of the
Agent or any Agent Control Person, specifically for use in the preparation
thereof, or (ii) arises out of the acts or omissions of broker-dealers retained
by the Fund in connection with the offering contemplated by the Fund’s
Prospectus other than the Agent or any Agent Control Person; or (2) arise out of
the Fund's material breach of a representation or warranty, covenant or
agreement contained in this Agreement; provided, however, that the Fund shall
not indemnify or hold harmless the Agent or any Agent Control Person against any
Losses caused by the Agent's or the Agent Control Person's willful misfeasance,
bad faith, or gross negligence in the performance of its duties, or by the
reckless disregard of its obligations and duties under this Agreement.
Notwithstanding the foregoing, the Fund shall not be liable with respect to any
claims made against the Agent or any Agent Control Person unless the Agent or
such Agent Control Person notified the Fund in writing within a reasonable time
after the summons or other first legal process providing information of the
nature of the claim was served upon the Agent or such Agent Control Person, but
failure to notify the Fund of any such claim shall not relieve it from any
liability that it may have to the Agent or such Agent Control Person for acts or
alleged acts other than those described in (1) and (2) of the preceding
sentence.
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The Fund
will be entitled, at its own expense, to participate in or assume the defense of
any suit brought to enforce any such liability, and if the Fund elects to assume
the defense, such defense shall be conducted by counsel chosen by it. In the
event the Fund elects to assume the defense of any such suit and retain such
counsel, the Agent or such Agent Control Person or persons, as defendant or
defendants in the suit, may retain additional counsel but shall bear
the
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fees and
expenses of such counsel unless: (i) the Fund specifically authorizes the
retention of such counsel or (ii) the Agent or any Agent Control Person who is a
parry to the suit has been advised by counsel acceptable to the Fund that one or
more material legal defenses may be available to the Agent or the Agent Control
Persons that may not be available to the Fund or its control persons (as defined
below), in which case the Fund shall not be entitled to assume the defense of
such suit notwithstanding its obligation to bear the reasonable fees and
expenses of counsel for the Agent and the Agent Control Persons. In no event
shall the Fund be liable for the fees and expenses of more than one counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. The Fund shall not be liable to or
indemnify any person for any settlement of any such claim effected without the
consent of the Fund, which it shall not unreasonably withhold.
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(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Agent agrees to indemnify and hold harmless the Fund, each of the Fund’s
Partners, directors, officers and each person, if any, who controls the Fund
within the meaning of the 1940 Act (for purposes of this paragraph, "Fund
Control Person") against any losses, claims, damages, liabilities, or expenses
(including, unless Agent elects to assume the defense, the reasonable cost of
investigating and defending against any claims therefor and counsel fees
incurred in connection therewith), joint or several (for purposes of this
paragraph, "Losses"), which: (i) may be based on the ground or alleged ground
that the Fund’s Prospectus or any supplemental sales material used by the Agent,
includes or allegedly includes an untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which it was made, not misleading, but only
insofar as such statement or omission: (A) was made in reliance upon, and in
conformity with, written information furnished to the Fund by or on behalf of
the Agent or any Agent Control Person specifically for use in the preparation
thereof, or (B) relates to any such supplemental sales material not supplied by
the Fund or approved by it in writing; (ii) arises out of any acts or omissions
by the Agent that cause the offering to involve an offering that is not exempt
from registration pursuant to Section 4(2) of the 1933 Act or Regulation D
thereunder, (iii) arises out of the Agent's failure to be properly licensed to
sell Shares; or (iv) arises out of the Agent's material breach of a
representation or warranty or covenant or agreement contained in this Agreement.
Notwithstanding the foregoing, the Agent shall not be liable with respect to any
claims made against the Fund or any Fund Control Person unless the Fund or Fund
Control Person notified the Agent in writing within a reasonable time after the
summons or other first legal process providing information of the nature of the
claim served upon the Fund or Fund Control Person, but failure to notify the
Agent of such claim shall not relieve the Agent from any liability that the
Agent may have to the Fund or Fund Control Person for acts or alleged acts other
than those described in (i) through (iv) of the preceding sentence.
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The Agent
shall be entitled, at its own expense, to participate in or assume the defense
of any suit brought to enforce any such liability, and if the Agent elects to
assume the defense, such defense shall be conducted by counsel chosen by it. In
the event that the Agent elects to assume the defense of any such suit and
retain such counsel, the Fund and any Fund Control Person, as defendant or
defendants in the suit, may retain additional counsel but shall bear the fees
and expenses of such counsel unless (i) the Agent specifically authorized the
retention of such counsel or (ii) the Fund or any Fund Control Person who is a
party to the suit has been advised by counsel acceptable to the Agent that one
or more material legal defenses may be available to
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the Fund
or Fund Control Persons that may not be available to the Agent or its
controlling person or persons, in which case the Agent shall not be entitled to
assume the defense of such suit notwithstanding the Agent's obligation to bear
the reasonable fees and expenses of such counsel. The Agent shall not be liable
to indemnify any person for any settlement of any such claim effected without
the Agent's consent, which it shall not unreasonably withhold.
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7.ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýTerm and
Termination.
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(a)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýUnless
sooner terminated as provided herein, this Agreement shall continue in effect
for two years from the date of its execution. Thereafter, if not terminated,
this Agreement shall continue automatically for successive periods of twelve
months each, provided that such continuance is specifically approved at least
annually by the Fund's Board of Trustees and, by a separate vote, a majority of
the Directors that are not "interested persons" of the Fund or the Agent within
the meaning of the 1940 Act.
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(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThis
Agreement may be terminated by the Agent or the Fund upon 60 days' written
notice to the other party.ÌýÌýThis Agreement shall automatically
terminate in the event of its assignment, provided that an assignment to a
corporate successor to all or substantially all of the business of the Agent, as
applicable, or to a wholly-owned subsidiary of such corporate successor which
does not result in a change of actual control or management of the business of
the Agent, as applicable, shall not be deemed to be an assignment for the
purposes of this Agreement.
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(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýNotwithstanding
the termination of this Agreement, the obligations of each party to this
Agreement under Section 6 and 10 shall survive indefinitely.
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8.ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýSeverability.
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The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provisions of this Agreement,
which shall remain in full force and effect.
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9.ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAmendments.
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This
Agreement may not be amended or modified except in writing signed by each of the
parties hereto and shall be governed by and construed and enforced in.
accordance with the laws of the State of Delaware.
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10.ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýConfidentiality.
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The Agent
agrees to treat confidentially any information which is furnished to the Agent
(or to parties acting on its behalf) by or on behalf of the Fund (the
"Information"). The Agent agrees that it will use the Information only for the
purposes related to Clients' investment in the Fund, and that the Information
will be kept confidential by the Agent and its partners, members, managers,
officers, directors, employees, attorneys, accountants, agents, and other
Affiliates (collectively, the "Related Persons"), and that the Agent and the
Related Persons shall not disclose the Information to any person; provided,
however, that the Information may be disclosed: (a) to the Agent and Related
Persons who require the Information for the purpose of
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evaluating
or providing services in connection with Clients' investments in the Fund; (b)
pursuant to prior written consent of the Fund, to any federal or state
regulatory agency and their employees, agents, and attorneys for the purpose of
making any filings or disclosures required by law, provided that the Agent
provides prior written notice to the Fund of the information to be disclosed;
(c) pursuant to prior written consent of the Fund, in response to any inquiry,
subpoena or other request for information from any federal or state court,
regulatory agency, or other governmental agent; and (d) to any other person the
disclosure to whom the Fund previously authorizes in writing.
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If the
foregoing correctly sets forth the understanding and agreement between the Agent
and the Fund, please so indicate in the space provided for that purpose below,
whereupon this Agreement shall constitute a binding agreement as of the date
first above written.
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Salient
Capital, L.P.
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By:
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Name:
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Title:
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Managing Director | Ìý |
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Address:
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Phone:
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Telecopy:
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Salient
Absolute Master Fund
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By:
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Name:
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Title:
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Secretary
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Address:
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Phone:
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Telecopy:
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