WELLS FARGO SECURITIES, LLC MASTER AGREEMENT AMONG UNDERWRITERS REGISTERED SEC OFFERINGS (INCLUDING MULTIPLE SYNDICATE OFFERINGS) AND EXEMPT OFFERINGS (OTHER THAN OFFERINGS OF MUNICIPAL SECURITIES)
Exhibit
h.5
XXXXX FARGO SECURITIES, LLC
MASTER AGREEMENT AMONG UNDERWRITERS
REGISTERED SEC OFFERINGS
(INCLUDING MULTIPLE SYNDICATE OFFERINGS)
AND
EXEMPT OFFERINGS
(OTHER THAN OFFERINGS OF MUNICIPAL SECURITIES)
July 6, 2009
This Master Agreement Among Underwriters (this “Master AAU”), dated as of July 6, 2009, is by
and between Xxxxx Fargo Securities, LLC (“Xxxxx Fargo Securities,” “we” or “us”) and the party
named on the signature page hereof (an “Underwriter,” as defined in Section 1.1 hereof, or “you”).
From time to time we or one or more of our affiliates may invite you (and others) to participate on
the terms set forth herein as an underwriter or an initial purchaser, or in a similar capacity, in
connection with certain offerings of securities that are managed solely by us or with one or more
other co-managers. If we invite you to participate in a specific offering and sale of securities
(an “Offering”) to which this Master AAU will apply, we will send the information set forth in
Section 1.1 hereof to you by one or more wires, telexes, telecopy or electronic data transmissions,
or other written communications (each, a “Wire,” and collectively, an “AAU”), unless you are
otherwise deemed to have accepted an AAU with respect to such Offering pursuant to Section 1.2
hereof. Each Wire will indicate that it is a Wire pursuant to this Master AAU. The Wire inviting
you to participate in an Offering is referred to herein as an “Invitation Wire.” You and we hereby
agree that by the terms hereof the provisions of this Master AAU automatically will be incorporated
by reference in each AAU, except that any such AAU may also exclude or revise such provisions of
this Master AAU in respect of the Offering to which such AAU relates, and may contain such
additional provisions as may be specified in any Wire relating to such AAU. You and we further
agree as follows:
I. GENERAL
1.1. Terms of AAU; Certain Definitions; Construction. Each AAU will relate to an Offering,
and will identify: (i) the securities to be offered in the Offering (the “Securities”), their
principal terms, the issuer or issuers (each, an “Issuer”) and any guarantor (each, a “Guarantor”)
thereof, and, if different from the Issuer, the seller or sellers (each, a “Seller”) of the
Securities, (ii) the underwriting agreement, purchase agreement, standby underwriting agreement,
distribution agreement, or similar agreement (as identified in such AAU and as amended or
supplemented, including a terms agreement or pricing agreement pursuant to any of the foregoing,
collectively, the “Underwriting Agreement”) providing for the purchase, on a several and not joint
basis, of the Securities by the several underwriters, initial purchasers, or others acting in a
similar capacity (the “Underwriters”) on whose behalf the Manager (as defined below) executes the
Underwriting Agreement, and whether such agreement provides for: (x) an option to purchase
Additional Securities (as defined below) to cover over-allotments, or (y) an offering in multiple
jurisdictions or markets involving two or more syndicates (an “International Offering”), each of
which will offer and sell Securities subject to such restrictions as may be specified in any
Intersyndicate Agreement (as defined below) referred to in such AAU, (iii) the price at which the
Securities are to be purchased by the several Underwriters from any Issuer or Seller thereof (the
“Purchase Price”), (iv) the offering terms, including, if applicable, the price or prices at which
the Securities initially will be offered by the Underwriters (the “Offering Price”), any selling
concession to dealers (the “Selling Concession”), reallowance (the “Reallowance”),
management fee, global coordinators’ fee, praecipium, or other similar fees, discounts, or
commissions (collectively, the “Fees and Commissions”) with respect to the Securities, and
(v) other principal terms of the Offering, which may include, without limitation: (A) the proposed
or actual pricing date (“Pricing Date”) and settlement date (the “Settlement Date”), (B) any
contractual restrictions on the offer and sale of the Securities pursuant to the Underwriting
Agreement, Intersyndicate Agreement, or
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otherwise, (C) any co-managers for such Offering (the
“Co-Managers”), (D) your proposed participation in the Offering, and (E) any trustee, fiscal agent,
or similar agent (the “Trustee”) for the indenture, trust agreement, fiscal agency agreement, or
similar agreement (the “Indenture”) under which such Securities will be issued.
“Manager” means Xxxxx Fargo Securities, except as set forth in Section 9.9 hereof.
“Representative” means the Manager and any Co-Manager that signs the applicable Underwriting
Agreement on behalf of the Underwriters or is identified as a Representative in the applicable
Underwriting Agreement. “Underwriters” includes the Representative(s), the Manager, and the
Co-Managers. “Firm Securities” means the number or amount of Securities that the several
Underwriters are initially committed to purchase under the Underwriting Agreement (which may be
expressed as a percentage of an aggregate number or amount of Securities to be purchased by the
Underwriters, as in the case of a standby Underwriting Agreement). “Additional Securities” means
the Securities, if any, that the several Underwriters have an option to purchase under the
Underwriting Agreement to cover over-allotments. The number, amount, or percentage of Firm
Securities set forth opposite each Underwriter’s name in the Underwriting Agreement plus any
additional Firm Securities which such Underwriter has made a commitment to purchase, irrespective
of whether such Underwriter actually purchases or sells such number, amount, or percentage of
Securities under the Underwriting Agreement or Article XI hereof, is hereinafter referred to as the
“Original Underwriting Obligation” of such Underwriter, and the ratio which such Original
Underwriting Obligation bears to the total of all Firm Securities set forth in the Underwriting
Agreement (or, in the case of a standby Underwriting Agreement, to 100%) is hereinafter referred to
as the “Underwriting Percentage” of such Underwriter. For the avoidance of doubt, each Underwriter
acknowledges and agrees that, for all purposes under this Agreement and otherwise (including, to
the extent applicable, for purposes of Section 11(e) under the U.S. Securities Act of 1933 (the
“1933 Act”)), each Underwriter’s Underwriting Percentage of the total number, amount, or percentage
of Securities offered and sold in the Offering (including any Additional Securities), and only such
number, amount, or percentage, constitutes the securities underwritten by such Underwriter and
distributed to investors.1
References herein to laws, statutory and regulatory sections, rules, regulations, forms, and
interpretive materials will be deemed to include any successor provisions.
1.2. Acceptance of AAU. You will have accepted an AAU for an Offering if: (a) we receive your
acceptance, prior to the time specified in the Invitation Wire for such Offering, by wire, telex,
telecopy or electronic data transmission, or other written communication (any such communication
being deemed “In Writing”) or orally (if promptly confirmed In Writing), in the manner specified in
the Invitation Wire, of our invitation to participate in the Offering, or (b) notwithstanding that
we did not send you an Invitation Wire or you have not otherwise responded In Writing to any such
Wire, you: (i) agree (orally or by a Wire) to be named as an Underwriter in the relevant
Underwriting Agreement executed by us as Manager, or (ii) receive
1 | Meant to clarify mechanics of underwriting for purposes of Section 11(e), and rebut footnote 8 of the WorldCom decision. See In re: Worldcom, Inc. Securities Litigation, U.S. Dist. Ct. (SDNY), slip-op 02 Civ 3288, March 14, 2005 (unpublished). |
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and retain an economic benefit
for participating in the Offering as an Underwriter. Your acceptance of the invitation to
participate will cause such AAU to constitute a valid and binding contract between us. Your
acceptance of the AAU as provided above or an Invitation Wire will also constitute acceptance by
you of the terms of subsequent Wires to you relating to the Offering unless we receive In Writing,
within the time and in the manner specified in such subsequent Wire, a notice from you to the
effect that you do not accept the terms of such subsequent Wire, in which case you will be deemed
to have elected not to participate in the Offering.
1.3. Underwriters’ Questionnaire. Your acceptance of the Invitation Wire for an Offering or
your participation in an Offering as an Underwriter will confirm that you have no exceptions to the
Underwriters’ Questionnaire attached as Exhibit A hereto (or to any other questions addressed to
you in any Wires relating to the Offering previously sent to you), other than exceptions noted by
you In Writing in connection with the Offering and received from you by us before the time
specified in the Invitation Wire or any subsequent Wire.
II. OFFERING MATERIALS; OFFERING AGREEMENTS
2.1. Registered Offerings. In the case of an Offering that will be registered in whole or in
part (a “Registered Offering”) under the 1933 Act, you acknowledge that the Issuer has filed with
the Securities and Exchange Commission (the “Commission”) a registration statement, including a
prospectus relating to the Securities. “Registration Statement” means such registration statement
as amended to the effective date of the Underwriting Agreement and, in the event that the Issuer
files an abbreviated registration statement to register additional Securities pursuant to Rule
462(b) or 462(e) under the 1933 Act, such abbreviated registration statement. “Prospectus” means
the prospectus, together with the final prospectus supplement, if any, containing the final terms
of the Securities and, in the case of a Registered Offering that is an International Offering,
“Prospectus” means, collectively, each prospectus or offering circular, together with each final
prospectus supplement or final offering circular supplement, if any, relating to the Offering, in
the respective forms containing the final terms of the Securities. “Preliminary Prospectus” means
any preliminary prospectus relating to the Offering or any preliminary prospectus supplement
together with a prospectus relating to the Offering and, in the case of a Registered Offering that
is an International Offering, “Preliminary Prospectus” means, collectively, each preliminary
prospectus or preliminary offering circular relating to the
Offering or each preliminary prospectus supplement or preliminary offering circular
supplement, together with a prospectus or offering circular, respectively, relating to the
Offering. “Free Writing Prospectus” means, in the case of a Registered Offering, a “free writing
prospectus” as defined in Rule 405 under the 1933 Act. As used herein the terms “Registration
Statement,” “Prospectus,” “Preliminary Prospectus,” and “Free Writing Prospectus” will include in
each case the material, if any, incorporated by reference therein, and as used herein, the term
“Registration Statement” includes information deemed to be part thereof pursuant to, and as of the
date and time specified in, Rules 430A, 430B, or 430C under the 1933 Act, while the terms
“Prospectus” and “Preliminary Prospectus” include information deemed to be a part thereof pursuant
to the rules and regulations under the 1933 Act, but only as of the actual time that information is
first used or filed with the Commission pursuant to Rule 424(b) under the 1933 Act. The Manager
will furnish, make available to you, or make arrangements for you to obtain copies (which may, to
the extent permitted by law, be in electronic form) of each Prospectus and
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Preliminary Prospectus
(as amended or supplemented, if applicable, but excluding, for this purpose, unless otherwise
required pursuant to rules or regulations under the 1933 Act, documents incorporated therein by
reference) as soon as practicable after sufficient quantities thereof have been made available by
the Issuer.
As used herein, in the case of an Offering that is an offering of asset-backed securities, the
term “ABS Underwriter Derived Information” means any analytical or computational materials as
described in clause (5) of footnote 271 of Commission Release No. 33-8591, issued July 19, 2005
(Securities Offering Reform) (the “Securities Offering Reform Release”).
2.2. Non-Registered Offerings. In the case of an Offering other than a Registered Offering,
you acknowledge that no registration statement has been filed with the Commission. “Offering
Circular” means the final offering circular or memorandum, if any, or any other final written
materials authorized by the Issuer to be used in connection with an Offering that is not a
Registered Offering. “Preliminary Offering Circular” means any preliminary offering circular or
memorandum, if any, or any other written preliminary materials authorized by the Issuer to be used
in connection with such an Offering. As used herein, the terms “Offering Circular” and
“Preliminary Offering Circular” include the material, if any, incorporated by reference therein.
We will either, as soon as practicable after the later of the date of the Invitation Wire or the
date made available to us by the Issuer, furnish to you (or make available for your review) a copy
of any Preliminary Offering Circular or any proof or draft of the Offering Circular. In any event,
in any Offering involving an Offering Circular, the Manager will furnish, make available to you, or
make arrangements for you to obtain, as soon as practicable after sufficient quantities thereof are
made available by the Issuer, copies (which may, to the extent permitted by law, be in electronic
form) of the Preliminary Offering Circular and Offering Circular, as amended or supplemented, if
applicable (but excluding, for this purpose, documents incorporated therein by reference).
2.3. Authority to Execute Underwriting and Intersyndicate Agreements. You authorize the
Manager, on your behalf: (a) to determine the form of the Underwriting Agreement
and to execute and deliver to the Issuer, Guarantor, or Seller the Underwriting Agreement to
purchase: (i) up to the number, amount, or percentage of Firm Securities set forth in the
applicable AAU, and (ii) if the Manager elects on behalf of the several Underwriters to exercise
any option to purchase Additional Securities, up to the number, amount, or percentage of Additional
Securities set forth in the applicable AAU, subject, in each case, to reduction pursuant to
Article IV; and (b) to determine the form of any agreement or agreements, including, but not
limited to, underwriting agreements, between or among the syndicates participating in the Offering
or International Offering, respectively (each, an “Intersyndicate Agreement”), and to execute and
deliver any such Intersyndicate Agreement.
III. MANAGER’S AUTHORITY
3.1. Terms of Offering. You authorize the Manager to act as manager of the Offering of the
Securities by the Underwriters (the “Underwriters’ Securities”) or by the Issuer or Seller pursuant
to delayed delivery contracts (the “Contract Securities”), if any, contemplated by the Underwriting
Agreement. You authorize the Manager: (i) to purchase any or all of the Additional Securities for
the accounts of the several Underwriters pursuant to the Underwriting Agreement, (ii) to agree, on
your behalf and on behalf of the Co-Managers, to any addition to,
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change in, or waiver of any
provision of, or the termination of, the Underwriting Agreement or any Intersyndicate Agreement
(other than an increase in the Purchase Price or in your Original Underwriting Obligation to
purchase Securities, in either case from that contemplated by the applicable AAU), (iii) to add
prospective or remove existing Underwriters from the syndicate, (iv) to exercise, in the Manager’s
discretion, all of the authority vested in the Manager in the Underwriting Agreement, (v) except as
described below in this Section 3.1, to take any other action as may seem advisable to the Manager
in respect of the Offering (including, in the case of an Offering of asset-backed securities, the
preparation and delivery of ABS Underwriter Derived Information), including actions and
communications with the Commission, the Financial Industry Regulatory Authority (“FINRA,” formerly
known as the National Association of Securities Dealers, Inc., and NASD, Inc., or “NASD”), state
blue sky or securities commissions, stock exchanges, and other regulatory bodies or organizations.
Furthermore, the Manager will have exclusive authority, on your behalf and on behalf of the
Co-Managers, to exercise powers and pursue enforcement of the terms and conditions of the
Underwriting Agreement and any Intersyndicate Agreement, whether or not actually exercised, except
as otherwise specified herein or therein. If, in accordance with the terms of the applicable AAU,
the Offering of the Securities is at varying prices based on prevailing market prices, or prices
related to prevailing market prices, or at negotiated prices, you authorize the Manager to
determine, on your behalf in the Manager’s discretion, any Offering Price and the Fees and
Commissions applicable to the Offering from time to time. You authorize the Manager on your behalf
to arrange for any currency transactions (including forward and hedging currency transactions) as
the Manager may deem necessary to facilitate settlement of the purchase of the Securities, but you
do not authorize the Manager on your behalf to engage in any other forward or hedging transactions
(including interest rate hedging transactions) in connection with the Offering unless such
transactions are specified in an applicable AAU or are otherwise consented to by you. You further
authorize the Manager, subject to the provisions of Section 1.2 hereof: (i) to vary the offering
terms of the Securities in
effect at any time, including, if applicable, the Offering Price, Fees, and Commissions set
forth in the applicable AAU, (ii) to determine, on your behalf, the Purchase Price, and (iii) to
increase or decrease the number, amount, or percentage of Securities being offered.
Notwithstanding the foregoing provisions of this Section 3.1, the Manager will notify the
Underwriters, prior to the signing of the Underwriting Agreement, of any provision in the
Underwriting Agreement that could result in an increase in the number, amount, or percentage of
Firm Securities set forth opposite each Underwriter’s name in the Underwriting Agreement by more
than 25% (or such other percentage as will have been specified in the applicable Invitation Wire or
otherwise consented to by you) as a result of the failure or refusal of another Underwriter or
Underwriters to perform its or their obligations thereunder. The Manager may, at its discretion,
delegate to any Underwriter any and all authority vested in the applicable AAU, including, but not
limited to, the powers set forth in Sections 5.1 and 5.2 hereof.
3.2. Offering Date. The Offering is to be made on or about the time the Underwriting
Agreement is entered into by the Issuer, Guarantor, or Seller and the Manager as in the Manager’s
judgment is advisable, on the terms and conditions set forth in the Prospectus or the Offering
Circular, as the case may be, and the applicable AAU. You will not sell any Securities prior to
the time the Manager releases such Securities for sale to purchasers. The date on which such
Securities are released for sale is referred to herein as the “Offering Date.”
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3.3. Communications. Any public announcement or advertisement of the Offering will be made by
the Manager on behalf of the Underwriters on such date as the Manager may determine. You will not
announce or advertise the Offering prior to the date of the Manager’s announcement or advertisement
thereof without the Manager’s consent. If the Offering is made in whole or in part in reliance on
any applicable exemption from registration under the 1933 Act, you will not engage in any general
solicitation, announcement, or advertising in connection with the Offering, and will abide by any
other restrictions in the AAU or the Underwriting Agreement in connection therewith relating to any
announcement, advertising, or publicity. Any announcement or advertisement you may make of the
Offering after such date will be your own responsibility, and at your own expense and risk. In
addition to your compliance with restrictions on the Offering pursuant to Sections 10.9, 10.10,
10.11, and 10.12 hereof, you will not, in connection with the offer and sale of the Securities in
the Offering, without the consent of the Manager, give, send, or otherwise convey to any
prospective purchaser or any purchaser of the Securities or other person not in your employ any
written communication (as defined in Rule 405 under the 0000 Xxx) other than:
(i) any Preliminary Prospectus, Prospectus, Preliminary Offering Circular, or
Offering Circular,
(ii) (A) written confirmations and notices of allocation delivered to your
customers in accordance with Rules 172 or 173 under the 1933 Act, and written
communications based on the exemption provided by Rule 134 under the 1933 Act, and
(B) in the case of Offerings not registered under the 1933 Act, such written
communications (1) as would be permitted by Section 3.3(v)(D)(1) below were such
Offering registered under the 1933 Act, or (2) that the Manager or Underwriting
Agreement may permit; provided, however, that such written
communication under this clause (B) would not have otherwise constituted
“Issuer Information” as defined below, or would have qualified for the exemption
provided by Rule 134 under the 1933 Act, in each case, if such communication had
been furnished in the context of a Registered Offering (“Supplemental Materials”),
(iii) any “issuer free writing prospectus” (as defined in Rule 433(h) under the
1933 Act, an “Issuer Free Writing Prospectus”), so long as such issuance or use has
been permitted or consented to by the Issuer and the Manager,
(iv) information contained in any computational materials, or in the case of an
Offering of asset backed securities, the ABS Underwriter Derived Information, or any
other offering materials not constituting a Free Writing Prospectus concerning the
Offering, the Issuer, the Guarantor, or the Seller, in each case, prepared by or
with the permission of the Manager for use by the Underwriters in connection with
the Offering, and, in the case of a Registered Offering, filed (if required) with
the Commission or FINRA, as applicable, and
(v) a Free Writing Prospectus prepared by or on behalf of, or used or referred
to by, an Underwriter in connection with the Offering, so long as: (A) such Free
Writing Prospectus is not required to be filed with the Commission,
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(B) the proposed
use of such Free Writing Prospectus is permitted by the Underwriting Agreement, (C)
such Free Writing Prospectus complies with the legending condition of Rule 433 under
the 1933 Act, and you comply with the record-keeping condition of Rule 433, and (D)
(1) such Free Writing Prospectus contains only information describing the
preliminary terms of the Securities and other pricing data2 that is not
“Issuer Information” (as defined in Rule 433(h) under the 1933 Act, including
footnote 271 of the Securities Offering Reform Release), or (2) the Issuer has
agreed in the Underwriting Agreement to file a final term sheet under Rule 433
within the time period necessary to avoid a requirement for any Underwriter to file
the Free Writing Prospectus to be used by such Underwriter, and the Free Writing
Prospectus used by such Underwriter contains only information describing the terms
of the Securities or their offering that is included in such final term sheet of the
Issuer and other pricing data that is not Issuer Information (a Free Writing
Prospectus meeting the requirements of (A) through (D) above used, or referred to by
you, is referred to herein as an “Underwriter Free Writing Prospectus” of yours).
Without limiting the foregoing, any Underwriter Free Writing Prospectus that you use
or refer to will not be distributed by you or on your behalf in a manner reasonably
designed to lead to its broad unrestricted dissemination. You will comply in all
material
respects with the applicable requirements of the 1933 Act and the rules and
regulations thereunder in connection with your use of any Underwriter Free Writing
Prospectus.
Any advertisement or written information published, given, sent, or otherwise conveyed by you
in violation of this Section 3.3 is referred to as “Unauthorized Material.”
3.4. Institutional and Retail Sales. You authorize the Manager to sell to institutions and
retail purchasers such Securities purchased by you pursuant to the Underwriting Agreement as the
Manager will determine. The Selling Concession on any such sales will be credited to the accounts
of the Underwriters as the Manager will determine.
3.5. Sales to Dealers. You authorize the Manager to sell to Dealers (as defined below) such
Securities purchased by you pursuant to the Underwriting Agreement as the Manager will determine.
A “Dealer” will be a person who is: (a) a broker or dealer (as defined by FINRA) actually engaged
in the investment banking or securities business, and (i) a member in good standing of FINRA, or
(ii) a non-U.S. bank, broker, dealer, or other institution not eligible for membership in FINRA
that, in the case of either clause (a)(i) or (a)(ii), makes the representations and agreements
applicable to such institutions contained in Section 10.5 hereof, or (b) in the case of Offerings
of Securities that are exempt securities under Section 3(a)(12) of the Securities Exchange Act of
1934 (the “1934 Act”), and such other Securities as from time to time may be sold by a “bank” (as
defined in Section 3(a)(6) of the 1934 Act (a “Bank”)), a Bank that is not a member of FINRA and
that makes the representations and agreements applicable to such institutions contained in Section
10.5 hereof. If the price for any such sales by the Manager
2 | Meant to permit disclosure of non-Issuer related information, such as benchmark Treasury rate, in preliminary term sheets or price talk. |
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to Dealers exceeds an amount equal to
the Offering Price less the Selling Concession set forth in the applicable AAU, the amount of such
excess, if any, will be credited to the accounts of the Underwriters as the Manager will determine.
3.6. Direct Sales. The Manager will advise you promptly, on the Offering Date, as to the
Securities purchased by you pursuant to the Underwriting Agreement that you will retain for direct
sale. At any time prior to the termination of the applicable AAU, any such Securities that are
held by the Manager for sale but not sold may, on your request and at the Manager’s discretion, be
released to you for direct sale, and Securities so released to you will no longer be deemed held
for sale by the Manager. You may allow, and Dealers may reallow, a discount on sales to Dealers in
an amount not in excess of the Reallowance set forth in the applicable AAU. You may not purchase
Securities from, or sell Securities to, any other Underwriter or Dealer at any discount or
concession other than the Reallowance, except with the prior consent of the Manager.
3.7. Release of Unsold Securities. From time to time prior to the termination of the
applicable AAU, at the request of the Manager, you will advise the Manager of the number or amount
of Securities remaining unsold which were retained by or released to you for direct sale, and of
the number or amount of Securities and Other Securities (as defined below) purchased for your
account remaining unsold which were delivered to you pursuant to Article V hereof or pursuant to
any Intersyndicate Agreement, and, on the request of the Manager, you will release
to the Manager any such Securities and Other Securities remaining unsold: (a) for sale by the
Manager to institutions, Dealers, or retail purchasers, (b) for sale by the Issuer or Seller
pursuant to delayed delivery contracts, or (c) if, in the Manager’s opinion, such Securities or
Other Securities are needed to make delivery against sales made pursuant to Article V hereof or any
Intersyndicate Agreement.
3.8. International Offerings. In the case of an International Offering, you authorize the
Manager: (i) to make representations on your behalf as set forth in any Intersyndicate Agreement,
and (ii) to purchase or sell for your account pursuant to the Intersyndicate Agreement:
(a) Securities, (b) any other securities of the same class and series, or any securities into which
the Securities may be converted or for which the Securities may be exchanged or exercised, and (c)
any other securities designated in the applicable AAU or applicable Intersyndicate Agreement (the
securities referred to in clauses (b) and (c) above being referred to collectively as the “Other
Securities”).
IV. DELAYED DELIVERY CONTRACTS
4.1. Arrangements for Sales. Arrangements for sales of Contract Securities will be made only
through the Manager acting either directly or through Dealers (including Underwriters acting as
Dealers), and you authorize the Manager to act on your behalf in making such arrangements. The
aggregate number or amount of Securities to be purchased by the several Underwriters will be
reduced by the respective number or amounts of Contract Securities attributed to such Underwriters
as hereinafter provided. Subject to the provisions of Section 4.2 hereof, the aggregate number or
amount of Contract Securities will be attributed to the Underwriters as nearly as practicable in
proportion to their respective Underwriting Percentages, except that, as determined by the Manager
in its discretion: (a) Contract Securities directed and
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allocated by a purchaser to specific
Underwriters will be attributed to such Underwriters, and (b) Contract Securities for which
arrangements have been made for sale through Dealers will be attributed to each Underwriter
approximately in the proportion that Securities of such Underwriter held by the Manager for sales
to Dealers bear to all Securities so held. The fee with respect to Contract Securities payable to
the Manager for the accounts of the Underwriters pursuant to the Underwriting Agreement will be
credited to the accounts of the respective Underwriters in proportion to the Contract Securities
attributed to such Underwriters pursuant to the provisions of this Section 4.1, less, in the case
of each Underwriter, the concession to Dealers on Contract Securities sold through Dealers and
attributed to such Underwriter.
4.2. Excess Sales. If the number or amount of Contract Securities attributable to an
Underwriter pursuant to Section 4.1 hereof would exceed such Underwriter’s Original Underwriting
Obligation reduced by the number or amount of Underwriters’ Securities sold by or on behalf of such
Underwriter, such excess will not be attributed to such Underwriter, and such Underwriter will be
regarded as having acted only as a Dealer with respect to, and will receive only the concession to
Dealers on, such excess.
V. PURCHASE AND SALE OF SECURITIES
5.1. Facilitation of Distribution. In order to facilitate the distribution and sale of the
Securities, you authorize the Manager to buy and sell Securities and any Other Securities, in
addition to Securities sold pursuant to Article III hereof, in the open market or otherwise
(including, without limitation, pursuant to any Intersyndicate Agreement), for long or short
account, on such terms as it may deem advisable, and to over-allot in arranging sales. Such
purchases and sales and over-allotments will be made for the accounts of the several Underwriters
as nearly as practicable to their respective Underwriting Percentages or, in the case of an
International Offering, such purchases and sales will be for such accounts as set forth in the
applicable Intersyndicate Agreement. Any Securities or Other Securities which may have been
purchased by the Manager for stabilizing purposes in connection with the Offering prior to the
acceptance of the applicable AAU will be treated as having been purchased pursuant to this Section
5.1 for the accounts of the several Underwriters or, in the case of an International Offering, for
such accounts as are set forth in the applicable Intersyndicate Agreement. Your net commitment
pursuant to the foregoing authorization will not exceed at the close of business on any day an
amount equal to 20% of your Underwriting Percentage of the aggregate initial Offering Price of the
Firm Securities, it being understood that, in calculating such net commitment, the initial Offering
Price will be used with respect to the Securities so purchased or sold and, in the case of all
Other Securities, will be the purchase price thereof. For purposes of determining your net
commitment for short account (i.e., “naked short”), any short position that can be covered with:
(a) Securities that may be purchased upon exercise of any over-allotment option then exercisable,
(b) in the case of an International Offering, any Securities or Other Securities that the Manager
has agreed to purchase for your account pursuant to any applicable Intersyndicate Agreement, and
(c) Securities that may be purchased pursuant to a forward sale contract or similar arrangement
with the Issuer or any selling security holder in the Offering, will be disregarded. On demand you
will take up and pay for any Securities or Other Securities so purchased for your account and any
Securities released to you pursuant to Section 3.7 hereof, and will deliver to the Manager against
payment any Securities or Other Securities so sold or over-allotted for your account or released to
you. The Manager will notify you if it engages in
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any stabilization transaction in accordance with
Rule 17a-2 under the 1934 Act, and will notify you of the date of termination of stabilization.
You will not stabilize or engage in any syndicate covering transaction (as defined in Rule 100 of
Regulation M under the 1934 Act (“Regulation M”)) in connection with the Offering without the prior
consent of the Manager. You will provide to the Manager any reports required of you pursuant to
Rule 17a-2 under the 1934 Act not later than the date specified therein.
5.2. Penalty With Respect to Securities Repurchased by the Manager. If pursuant to the
provisions of Section 5.1 hereof and prior to the termination of the Manager’s authority to cover
any short position incurred under the applicable AAU or such other date as the Manager may specify
in a Wire, either: (a) the Manager purchases or contracts to purchase for the account of any
Underwriter in the open market or otherwise any Securities which were retained by, or released to,
you for direct sale or any Securities sold pursuant to Section 3.4 hereof for which you received a
portion of the Selling Concession set forth in the applicable AAU, or any Securities which may have
been issued on transfer or in exchange for such Securities, and which Securities were therefore not
effectively placed for investment, or (b) if the Manager has advised you by Wire that trading in
the Securities will be reported to the Manager pursuant to the “Initial Public Offering Tracking
System” of The Depository Trust Company (“DTC”) and the Manager determines, based on notices from
DTC, that your customers sold a number or amount of Securities during any day that exceeds the
number or amount previously notified to you by Wire, then you authorize the Manager either to
charge your account with an
amount equal to such portion of the Selling Concession set forth in the applicable AAU
received by you with respect to such Securities or, in the case of clause (b), such Securities as
exceed the number or amount specified in such Wire, or to require you to repurchase such Securities
or, in the case of clause (b), such Securities as exceed the number or amount specified in such
Wire, at a price equal to the total cost of such purchase, including transfer taxes, accrued
interest, dividends, and commissions, if any.
5.3. Compliance with Regulation M. You represent that, at all times since you were invited to
participate in the Offering, you have complied with the provisions of Regulation M applicable to
the Offering, in each case as interpreted by the Commission and after giving effect to any
applicable exemptions. If you have been notified in a Wire that the Underwriters may conduct
passive market making in compliance with Rule 103 of Regulation M in connection with the Offering,
you represent that, at all times since your receipt of such Wire, you have complied with the
provisions of such Rule applicable to such Offering, as interpreted by the Commission and after
giving effect to any applicable exemptions. You will comply with any additional provisions of
Regulation M if and to the extent set forth in the Invitation Wire or other Wire.
5.4. Standby Underwritings. You authorize the Manager in its discretion, at any time on, or
from time to time prior to, the expiration of the conversion right of convertible securities
identified in the applicable AAU in the case of securities called for redemption, or the expiration
of rights to acquire securities in the case of rights offerings, for which, in either case, standby
underwriting arrangements have been made: (i) to purchase convertible securities or rights to
acquire Securities for your account, in the open market or otherwise, on such terms as the Manager
determines, and to convert convertible securities or exercise rights so purchased; and (ii) to
offer and sell the underlying common stock or depositary shares for your account, in the open
market or otherwise, for long or short account (for purposes of such commitment, such
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common stock
or depositary shares being considered the equivalent of convertible securities or rights), on such
terms consistent with the terms of the Offering set forth in the Prospectus or Offering Circular as
the Manager determines. On demand, you will take up and pay for any securities so purchased for
your account or you will deliver to the Manager against payment any securities so sold, as the case
may be. During such period, you may offer and sell the underlying common stock or depositary
shares, but only at prices set by the Manager from time to time, and any such sales will be subject
to the Manager’s right to sell to you the underlying common stock or depositary shares as above
provided and to the Manager’s right to reserve your securities purchased, received, or to be
received upon conversion. You agree not to otherwise bid for, purchase, or attempt to induce
others to purchase or sell, directly or indirectly, any convertible securities or rights or
underlying common stock or depositary shares, provided, however, that no Underwriter will be
prohibited from: (a) selling underlying common stock owned beneficially by such Underwriter on the
day the convertible securities were first called for redemption, (b) converting convertible
securities owned beneficially by such Underwriter on such date or selling underlying common stock
issued upon conversion of convertible securities so owned, (c) exercising rights owned beneficially
by such Underwriter on the record date for a rights offering, or selling the underlying common
stock or depositary shares issued upon exercise of rights so owned, or (d) purchasing or selling
convertible securities or rights or underlying common stock or depositary shares as a broker
pursuant to unsolicited orders.
VI. PAYMENT AND SETTLEMENT
You will deliver to the Manager on the date and at the place and time specified in the
applicable AAU (or on such later date and at such place and time as may be specified by the Manager
in a subsequent Wire) the funds specified in the applicable AAU, payable to the order of Xxxxx
Fargo Securities, LLC, for: (a) an amount equal to the Offering Price plus (if not included in the
Offering Price) accrued interest, amortization of original issue discount or dividends, if any,
specified in the Prospectus or Offering Circular, less the applicable Selling Concession in respect
of the Firm Securities to be purchased by you, (b) an amount equal to the Offering Price plus (if
not included in the Offering Price) accrued interest, amortization of original issue discount or
dividends, if any, specified in the Prospectus or Offering Circular, less the applicable Selling
Concession in respect of such of the Firm Securities to be purchased by you as will have been
retained by or released to you for direct sale as contemplated by Section 3.6 hereof, or (c) the
amount set forth or indicated in the applicable AAU, as the Manager will advise. You will make
similar payment as the Manager may direct for Additional Securities, if any, to be purchased by you
on the date specified by the Manager for such payment. The Manager will make payment to the Issuer
or Seller against delivery to the Manager for your account of the Securities to be purchased by
you, and the Manager will deliver to you the Securities paid for by you which will have been
retained by or released to you for direct sale. If the Manager determines that transactions in the
Securities are to be settled through DTC or another clearinghouse facility and payment in the
settlement currency is supported by such facility, payment for and delivery of Securities purchased
by you will be made through such facilities, if you are a participant, or, if you are not a
participant, settlement will be made through your ordinary correspondent who is a participant.
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VII. EXPENSES
7.1. Management Fee. You authorize the Manager to charge your account as compensation for the
Manager’s and Co-Managers’ services in connection with the Offering, including the purchase from
the Issuer or Seller of the Securities, as the case may be, and the management of the Offering, the
amount, if any, set forth as the management fee, global coordinators’ fee, praecipium, or other
similar fee in the applicable AAU. Such amount will be divided among the Manager and any
Co-Managers named in the applicable AAU as they may determine. Each Underwriter acknowledges that
such fees are being paid by the Underwriters, and are not a benefit received directly or indirectly
from the Issuer of the type referred to in Section 11(e) of the 1933 Act.
7.2. Offering Expenses. You authorize the Manager to charge your account with your
Underwriting Percentage of all expenses agreed to be paid by the Underwriters in the Underwriting
Agreement and all expenses of a general nature incurred by the Manager and Co-Managers under the
applicable AAU in connection with the Offering, including the negotiation and preparation thereof,
or in connection with the purchase, carrying, marketing, sale and distribution of any securities
under the applicable AAU and any Intersyndicate Agreement, including, without limitation, legal
fees and expenses, transfer taxes, costs associated with approval of the Offering by FINRA, and the
costs of currency transactions (including forward and hedging currency transactions) or, if
permitted pursuant to Section 3.1 hereof, any other
forward or hedging transactions (including interest rate swaps) entered into to facilitate
settlement of the purchase of Securities permitted hereunder.
VIII. MANAGEMENT OF SECURITIES AND FUNDS
8.1. Advances; Loans; Pledges. You authorize the Manager to advance the Manager’s own funds
for your account, charging current interest rates, and to arrange loans for your account for the
purpose of carrying out the provisions of the applicable AAU and any Intersyndicate Agreement, and
in connection therewith, to hold or pledge as security therefor all or any securities which the
Manager may be holding for your account under the applicable AAU and any Intersyndicate Agreement,
to execute and deliver any notes or other instruments evidencing such advances or loans, and to
give all instructions to the lenders with respect to any such loans and the proceeds thereof. The
obligations of the Underwriters under loans arranged on their behalf will be several in proportion
to their respective Original Underwriting Obligations, and not joint. Any lender is authorized to
accept the Manager’s instructions as to the disposition of the proceeds of any such loans. In the
event of any such advance or loan, repayment thereof will, in the discretion of the Manager, be
effected prior to making any remittance or delivery pursuant to Section 8.2, 8.3, or 9.2 hereof.
8.2. Return of Amount Paid for Securities. Out of payment received by the Manager for
Securities sold for your account which have been paid for by you, the Manager will remit to you
promptly an amount equal to the price paid by you for such Securities.
8.3. Delivery and Redelivery of Securities for Carrying Purposes. The Manager may deliver to
you from time to time prior to the termination of the applicable AAU pursuant to Section 9.1 hereof
against payment, for carrying purposes only, any Securities or Other
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Securities purchased by you
under the applicable AAU or any Intersyndicate Agreement which the Manager is holding for sale for
your account but which are not sold and paid for. You will redeliver to the Manager against
payment any Securities or Other Securities delivered to you for carrying purposes at such times as
the Manager may demand.
IX. TERMINATION; INDEMNIFICATION; CONTRIBUTION; SETTLEMENT
9.1. Termination. Each AAU will terminate at the close of business on the later of: (a) the
date on which the Underwriters pay the Issuer or Seller for the Securities, and (b) 45 calendar
days after the applicable Offering Date, unless sooner terminated by the Manager. The Manager may
at its discretion by notice to you prior to the termination of such AAU alter any of the terms or
conditions of the Offering to the extent permitted by Articles III and IV hereof, or terminate or
suspend the effectiveness of Article V hereof, or any part thereof. No termination or suspension
pursuant to this paragraph will affect the Manager’s authority under Section 3.1 hereof to take
actions in respect of the Offering or under Article V hereof to cover any short position incurred
under such AAU or in connection with covering any such short position to require you to repurchase
Securities as specified in Section 5.2 hereof. For the avoidance of doubt, unless otherwise agreed
in a Wire or an Intersyndicate Agreement, the Manager’s authority to purchase Securities or Other
Securities, for long account, pursuant to Section 5.1 hereof, will terminate or be suspended upon
the termination or suspension, as the case may be, of the applicable AAU (or any provision and or
term thereof in respect of trading, price or offering
restrictions as set forth in a Wire that is sent by the Manager following the time the
Securities are released for sale to purchasers) or Article V or Section 5.1 hereof pursuant to this
paragraph.
9.2. Delivery or Sale of Securities; Settlement of Accounts. Upon termination of each AAU, or
prior thereto at the Manager’s discretion, the Manager will deliver to you any Securities paid for
by you pursuant to Article VI hereof and held by the Manager for sale pursuant to Section 3.4 or
3.5 hereof but not sold and paid for and any Securities or Other Securities that are held by the
Manager for your account pursuant to the provisions of Article V hereof or any Intersyndicate
Agreement. Notwithstanding the foregoing, at the termination of such AAU, if the aggregate initial
Offering Price of any such Securities and the aggregate purchase price of any Other Securities so
held and not sold and paid for does not exceed an amount equal to 20% of the aggregate initial
Offering Price of the Securities, the Manager may, in its discretion, sell such Securities and
Other Securities for the accounts of the several Underwriters, at such prices, on such terms, at
such times, and in such manner as it may determine. Within the period specified by applicable
FINRA Rules or, if no period is so specified, as soon as practicable after termination of such AAU,
your account will be settled and paid. The Manager may reserve from distribution such amount as
the Manager deems advisable to cover possible additional expenses. The determination by the
Manager of the amount so to be paid to or by you will be final and conclusive. Any of your funds
under the Manager’s control may be held with the Manager’s general funds without accountability for
interest.
Notwithstanding any provision of this Master AAU other than Section 10.11 hereof, upon
termination of each AAU, or prior thereto at the Manager’s discretion, the Manager may:
(i) allocate to the accounts of the Underwriters the expenses described in Section 7.2 hereof and
any losses incurred upon the sale of Securities or Other Securities pursuant to the applicable AAU
or any Intersyndicate Agreement (including any losses incurred upon the sale of securities
15
referred
to in Section 5.4(ii) hereof), (ii) deliver to the Underwriters any unsold Securities or Other
Securities purchased pursuant to Section 5.1 hereof or any Intersyndicate Agreement, and
(iii) deliver to the Underwriters any unsold Securities purchased pursuant to the applicable
Underwriting Agreement, in each case in the Manager’s discretion. The only limitations on such
discretion will be as follows: (a) no Underwriter that is not the Manager or a Co-Manager will
bear more than its share of such expenses, losses, or Securities (such share will not exceed such
Underwriter’s Underwriting Percentage and will be determined pro rata among all such Underwriters
based on their Underwriting Percentages), (b) no such Underwriter will receive Securities that,
together with any Securities purchased by such Underwriter pursuant to Article VI (but excluding
any Securities that such Underwriter is required to repurchase pursuant to Section 5.2 hereof)
exceed such Underwriter’s Original Underwriting Obligation, and (c) no Co-Manager will bear more
than its share of such expenses, losses, or Securities (such share to be determined pro rata among
the Manager and all Co-Managers based on their Underwriting Percentages). If any Securities or
Other Securities returned to you pursuant to clause (ii) or (iii) above were not paid for by you
pursuant to Article VI hereof, you will pay to the Manager an amount per security equal to the
amount set forth in clause (i) of Article VI, in the case of Securities returned to you pursuant to
clause (iii) above, or the purchase price of such securities, in the case of Securities or Other
Securities returned to you pursuant to clause (ii) above.
9.3. Certain Other Expenses. You will pay your Underwriting Percentage of: (i) all expenses
incurred by the Manager in investigating, preparing to defend, and defending against
any action, claim, or proceeding which is asserted, threatened, or instituted by any party,
including any governmental or regulatory body (each, an “Action”), relating to: (A) the
Registration Statement, any Preliminary Prospectus or Prospectus (and any amendment or supplement
thereto), any Preliminary Offering Circular or Offering Circular (and any amendment or supplement
thereto), any Supplemental Materials, any Issuer Free Writing Prospectus, and any ABS Underwriter
Derived Information used by any Underwriter other than the Manager, (B) the violation of any
applicable restrictions on the offer, sale, resale, or purchase of Securities or Other Securities
imposed by U.S. Federal or state laws or non-U.S. laws and the rules and regulations of any
regulatory body promulgated thereunder or pursuant to the terms of the applicable AAU, the
Underwriting Agreement, or any Intersyndicate Agreement, and (C) any claim that the Underwriters
constitute a partnership, an association, or an unincorporated business or other separate entity,
and (ii) any Losses (as defined in Section 9.4 hereof) incurred by the Manager in respect of any
such Action, whether such Loss will be the result of a judgment or arbitrator’s determination or as
a result of any settlement agreed to by the Manager. Notwithstanding the foregoing, you will not be
required to pay your Underwriting Percentage of any such expense or liability: (1) to the extent
that such expense or liability was caused by the Manager’s gross negligence or willful misconduct
as determined in a final judgment of a court of competent jurisdiction; (2) as to which, and to the
extent, the Manager actually receives (a) indemnity pursuant to Section 9.4 hereof, (b)
contribution pursuant to Section 9.5 hereof, (c) indemnity or contribution pursuant to the
Underwriting Agreement, or (d) damages from an Underwriter for breach of its representations,
warranties, agreements, or covenants contained in the applicable AAU; or (3) of the Manager (other
than fees of Syndicate Counsel) that relates to a settlement entered into by the Manager on a basis
that results in a settlement of such Action against it and fewer than all the Underwriters. None of
the foregoing provisions of this Section 9.3 will relieve any defaulting or breaching Underwriter
from liability for its defaults or breach.
16
Failure of any party to give notice under Section 9.10
hereof will not relieve any Underwriter of an obligation to pay expenses pursuant to the provisions
of this Section 9.3.
9.4. Indemnification. Notwithstanding any settlement or the termination of the applicable
AAU, you agree to indemnify and hold harmless each other Underwriter and each person, if any, who
controls any such Underwriter within the meaning of either Section 15 of the 1933 Act or Section 20
of the 1934 Act (each, an “Indemnified Party”), to the extent and upon the terms which you agree to
indemnify and hold harmless any of the Issuer, the Guarantor, the Seller, any person controlling
the Issuer, the Guarantor, the Seller, its directors, and, in the case of a Registered Offering,
its officers who signed the Registration Statement and, in the case of an Offering other than a
Registered Offering, its officers, in each case as set forth in the Underwriting Agreement. You
further agree to indemnify and hold harmless each Indemnified Party from and against any and all
losses, claims, damages, liabilities, and expenses not reimbursed pursuant to Section 9.3 hereof
(collectively, “Losses”) related to, arising out of, or in connection with the breach or violation
by you of the terms of Section 3.3 hereof, including any and all Losses under Section 5 of the 1933
Act, and any litigation, investigation, and proceeding (collectively, “Litigation”) relating to any
of the foregoing. You will also reimburse each such Indemnified Party upon demand for all
expenses, including fees and expenses of counsel, as they are incurred, in connection with
investigating, preparing for, or defending any of the foregoing. You will indemnify and hold
harmless each Indemnified Party from and against any and all Losses related to, arising out of, or
in connection with, any untrue statement or alleged untrue
statement of a material fact contained in any Underwriter Free Writing Prospectus or
Supplemental Material of yours or Unauthorized Material used by you, or any omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and any Litigation relating to any of the foregoing, and to
reimburse each such Indemnified Party upon demand for all expenses, including fees and expenses of
counsel, as they are incurred, in connection with investigating, preparing for, or defending any of
the foregoing. In addition, you will indemnify and hold harmless each Indemnified Party from and
against any and all Losses related to, arising out of, or in connection with any untrue statement
or alleged untrue statement of a material fact contained in any ABS Underwriter Derived Information
used by you, or any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and any Litigation
relating to any of the foregoing, and to reimburse each such Indemnified Party upon demand for all
expenses, including fees and expenses of counsel, as they are incurred, in connection with
investigating, preparing for, or defending any of the foregoing; provided, however, that any
Losses, joint or several, paid or incurred by any Underwriter, arising out of or based upon any ABS
Underwriter Derived Information which was used only by such Underwriter, or in connection with the
preparation of which an Underwriter is found to have acted with gross negligence or willful
misconduct in a final judgment of a court of competent jurisdiction, will be paid solely by such
Underwriter.
Each Underwriter will further indemnify and hold harmless any investment banking firm
identified in a Wire as the qualified independent underwriter as defined in NASD Conduct Rule 2720
or any FINRA successor rule thereto (in such capacity, a “QIU”) for an Offering and each person, if
any, who controls such QIU within the meaning of either Section 15 of the 1933 Act or Section 20 of
the 1934 Act, from and against any and all Losses related to, arising out of, or in connection with
such investment banking firm’s activities as QIU for the Offering. Each
17
Underwriter will reimburse
such QIU for all expenses, including fees and expenses of counsel, as they are incurred, in
connection with investigating, preparing for, and defending any Action related to, arising out of,
or in connection with such QIU’s activities as a QIU for the Offering. Each Underwriter will be
responsible for its Underwriting Percentage of any amount due to such QIU on account of the
foregoing indemnity and reimbursement. Such QIU will have no additional liability to any
Underwriter or otherwise as a result of its serving as QIU in connection with the Offering. To the
extent the indemnification provided to a QIU under this Section 9.4 is unavailable to such QIU or
is insufficient in respect of any Losses related thereto, whether as a matter of law or public
policy or as a result of the default of any Underwriter in performing its obligations under this
Section 9.4, each other Underwriter will contribute to the amount paid or payable by such QIU as a
result of such Losses related thereto in proportion to its Underwriting Percentage.
9.5. Contribution. Notwithstanding any settlement on the termination of the applicable AAU,
you will pay upon request of the Manager, as contribution, your Underwriting Percentage of any
Losses, joint or several, paid or incurred by any Underwriter to any person other than an
Underwriter, arising out of or in connection with the breach or violation of the terms of Section
3.3 hereof, including any and all Losses under Section 5 of the 1933 Act, and any Litigation
relating to the foregoing. Further, you will pay upon request of the Manager, your Underwriting
Percentage of any Losses, joint or several, paid or incurred by any Underwriter to any person other
than an Underwriter, arising out of or in connection with any untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus or Prospectus (and any amendment or supplement thereto), any Preliminary
Offering Circular or Offering Circular (and any amendment or supplement thereto), any Issuer Free
Writing Prospectus, any Supplemental Materials, any other materials prepared or used by an
Underwriter in accordance with Section 3.3 hereof, or any Underwriter Free Writing Prospectus of
yours or Unauthorized Material used by you, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading (other than an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information furnished to the Company In
Writing by the Underwriter on whose behalf the request for contribution is being made expressly for
use therein), or any act or omission to act or any alleged act or omission to act by the Manager
or, if applicable, a Representative, as the Manager or a Representative, in connection with any
transaction contemplated by this Agreement or undertaken in preparing for the purchase, sale, and
delivery of the Securities (provided, that you will not be required to pay in any such case to the
extent that any such Loss resulted from the Manager’s or such Representative’s gross negligence or
willful misconduct as determined in a final judgment of a court of competent jurisdiction), and
your Underwriting Percentage of any legal or other expenses, including fees and expenses of
counsel, as they are incurred, reasonably incurred by the Underwriter (with the approval of the
Manager) on whose behalf the request for contribution is being made in connection with
investigating or defending any such Loss or any action in respect thereof; provided, however, that
no request will be made on behalf of any Underwriter guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) from any Underwriter who was not guilty of such
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act); provided,
further, that any Losses, joint or several, paid or incurred by any Underwriter, arising out of or
based upon such Underwriter’s Underwriter Free Writing Prospectus that does not breach Section 3.3
hereof, will be paid by
18
only the Underwriters that used such Underwriter Free Writing Prospectus
(the “Contributing Underwriters”), and the amount to be paid by each Contributing Underwriter will
be determined pro rata among the Contributing Underwriters based on their Underwriting Percentages.
None of the foregoing provisions of this Section 9.5 will relieve any defaulting or breaching
Underwriter from liability for its defaults or breach.
In addition, you will pay your Underwriting Percentage of any Losses, joint or several, paid
or incurred by any Underwriter to any person other than an Underwriter, arising out of or in
connection with any untrue statement or alleged untrue statement of a material fact contained in
any ABS Underwriter Derived Information, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading (other than an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information furnished to the Company In
Writing by the Underwriter on whose behalf the request for contribution is being made expressly for
use therein) and your Underwriting Percentage of any expenses, including fees and expenses of
counsel, as they are incurred, reasonably incurred by the Underwriter (with the approval of the
Manager) on whose behalf the request for contribution is being made in connection with
investigating, preparing for, or defending any such Loss or any action in respect thereof;
provided, however, that any Losses, joint or several, paid or incurred by any Underwriter, arising
out of or based upon any ABS Underwriter Derived Information which was used only by such
Underwriter, or in connection with the preparation of which the Underwriter is found to have
acted with gross negligence or willful misconduct in a final judgment of a court of competent
jurisdiction, will be paid solely by the Underwriter.
9.6. Separate Counsel. If any Action is asserted or commenced pursuant to which the indemnity
provided in Section 9.4 hereof or the right of contribution provided in Section 9.5 hereof may
apply, the Manager may take such action in connection therewith as it deems necessary or desirable,
including retention of counsel for the Underwriters (“Syndicate Counsel”), and in its discretion
separate counsel for any particular Underwriter or group of Underwriters, and the fees and
disbursements of any counsel so retained will be allocated among the several Underwriters as
determined by the Manager. Any such Syndicate Counsel retained by the Manager will be counsel to
the Underwriters as a group and, in the event that: (a) the Manager settles any Action on a basis
that results in the settlement of such Action against it and fewer than all the Underwriters, or
(b)(i) a conflict develops between the Manager and the other Underwriters, or (ii) differing
defenses are available to the other Underwriters and not available to the Manager, and as a result
of either (b)(i) or (b)(ii) such Syndicate Counsel concludes that it is unable to continue to
represent the Manager and the other Underwriters, then in each such case, after notification to the
Manager and the other Underwriters, Syndicate Counsel will remain counsel to the other Underwriters
and will withdraw as counsel to the Manager. The Manager hereby consents to such arrangement and
undertakes to take steps to: (i) ensure that any engagement letters with Syndicate Counsel are
consistent with such arrangement; (ii) issue a notice to all other Underwriters promptly following
receipt of any advice (whether oral or written) from Syndicate Counsel regarding its inability to
represent the Manager and the other Underwriters jointly; and (iii) facilitate Syndicate Counsel’s
continued representation of the other Underwriters. Any Underwriter may elect to retain at its own
expense its own counsel and, on advice of such counsel, may settle or consent to the settlement of
any such Action, but only in compliance with Section 9.7 hereof, and in each case, only after
notification to every other
19
Underwriter. The Manager may settle or consent to the settlement of
any such Action, but only in compliance with Section 9.7 hereof.
9.7. Settlement of Actions. Neither the Manager nor any other Underwriter party to this
Master AAU may settle or agree to settle any Action related to or arising out of the Offering, nor
may any other Underwriter settle or agree to settle any such Action without the consent of the
Manager, nor may any other Underwriter seek the Manager’s consent to any such settlement agreement,
nor may the Manager consent to any such settlement agreement, unless: (A) the Manager, together
with such other Underwriters as constitute a majority in aggregate interest based on the
Underwriting Percentage of the Underwriters as a whole (including the Manager’s interest), approve
the settlement of such Action, in which case the Manager is authorized to settle for all
Underwriters, provided, however, that the settlement agreement results in the settlement of the
Action against all Underwriters raised by the plaintiffs party thereto; or (B) (i) such settlement
agreement expressly provides that the non-settling Underwriters will be given a judgment credit (or
credit in settlement) with respect to all such Actions for which the non-settling Underwriters may
be found liable (or will pay in subsequent settlement), in an amount that is the greatest of:
(x) the dollar amount paid in such initial settlement to settle such Actions, (y) the proportionate
share of the settling Underwriter’s fault in respect of common damages arising in connection with
such Actions as proven at trial, if applicable, or (z) the amount by which the settling Underwriter
would have been required to make contribution had it not settled, under Sections 9.5 and 11.2
hereof in respect of the final non-appealable judgment (or
settlement) subsequently entered into by the non-settling Underwriters (such greatest amount
of either (x), (y), or (z), the “Judgment Credit”);3 (ii) such settlement agreement
expressly provides that in the event that the applicable court does not approve the Judgment Credit
as part of the settlement, the settlement agreement will automatically terminate; and (iii) the
final judgment entered with respect to the settlement agreement contains the Judgment Credit.
9.8. Survival. Except as set forth in the last sentence of Section 9.1, your agreements
contained in Article V and Sections 3.1, 9.3, 9.4, 9.5, 9.6, 9.7, 9.8, 9.9, 9.10, and 11.2 hereof
will remain operative and in full force and effect regardless of any termination of an AAU and:
(a) any termination of the Underwriting Agreement, (b) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of the Issuer, the
Guarantor, the Seller, its directors or officers, or any person controlling the Issuer, the
Guarantor or the Seller, and (c) acceptance of any payment for any Securities.
3 | Seeks to ensure that there is no harm to non-settling Underwriter due to settlement. For example, assume that plaintiffs have suffered $1,000 in damage in a case in which the Underwriters are 50% at fault and other defendants, all of whom are insolvent, are 50% at fault. Further assume that there were two Underwriters, each which underwrote 50% of the offering, and they were equally at fault. If neither Underwriter settles, then each would be required to pay $500 to satisfy the $1,000 verdict for which they are jointly and severally liable (or, if one paid $1,000, Section 9.5 would obligate the other to contribute $500 towards such payment). If the first Underwriter settles for $100, then the second Underwriter will obtain a judgment credit of $500, being equal to the greater of: (a) settlement amount ($100), (b) the first Underwriter’s fault ($250), and (c) the amount which the settling Underwriters would have been required to contribute under the contribution provisions ($500). This formula ensures that the second Underwriter is not harmed by the settlement. By contrast, the judgment credit applied in WorldCom ignored clause (c), resulting in a credit of only $250 and leading the non-settling Underwriter to pay $750, or $250 more than had the first Underwriter not settled. |
20
9.9. Replacement of Manager. If at any time after any Action is brought the Manager settles
the Action on a basis that results in the settlement of such Action against it and fewer than all
the Underwriters (whether or not such settlement complies with Section 9.7 hereof), the Manager
will, at such time, for purposes of Sections 9.3, 9.4, 9.5, 9.6, and 9.7 hereof, cease to be the
Manager. The non-settling Underwriters will, by vote of holders of a majority of the Underwriting
Percentage of such non-settling Underwriters, select a new Manager, which will become the new
“Manager” for all purposes of Sections 9.3, 9.4., 9.5, 9.6, and 9.7 hereof as well as this section;
provided that the non-settling Underwriter(s) with the largest Underwriting Percentage will act as
Manager until such vote occurs and a new Manager is selected.4
Notwithstanding such a settlement, the Manager and the other settling Underwriters will remain
obligated to the non-settling Underwriters to assist and cooperate fully, in good faith, and at
their own expense, in the defense of any Actions, including, without limitation, by providing, upon
reasonable request of any non-settling Underwriter, and without the necessity of court process,
access to or copies of all relevant records, and reasonable access to all witnesses under control
of the Manager or the other settling Underwriters, for the purpose of interviews,
depositions, and testimony at trial, subject in each case to the applicable legal and
procedural obligations of such Manager and such other settling Underwriter.
In addition, if at any time, the Manager is unwilling or unable for any reason to assume or
discharge its duties as Manager under the applicable AAU, whether resulting from its insolvency
(voluntary or involuntary), resignation or otherwise, to the extent permitted by applicable law,
the remaining Underwriters will, by vote of holders of a majority of the Underwriting Percentage of
such Underwriters, be entitled to select a new Manager, which will become the new Manager for all
purposes under this Agreement.5
Notwithstanding the foregoing, a Manager replaced pursuant to this Section 9.9 shall continue
to benefit from and be subject to all other terms and conditions of this Agreement applicable to an
Underwriter.
9.10. Notice. When the Manager receives notice of the assertion of any Action to which the
provisions of Sections 9.4, 9.5, 9.6, or 9.7 hereof would apply, it will give prompt notice thereof
to each Underwriter, and whenever an Underwriter receives notice of the assertion of any claim or
commencement of any Action to which the provisions of Sections 9.4, 9.5, 9.6, or 9.7 hereof would
apply, such Underwriter will give prompt notice thereof to the Manager. The Manager also will
furnish each Underwriter with periodic reports, at such times as it deems appropriate, as to the
status of such Action, and the actions taken by it in connection therewith. If the Manager or any
other Underwriter engages in any settlement discussion that involves or contemplates settlement on
any basis other than settlement of all Actions against all Underwriters on a pro rata basis
according to their Underwriting Percentages, the Manager (or other Underwriter engaging in such
discussions) will notify all other Underwriters promptly and provide reasonable details about such
discussions.
4 | Permits new Manager to replace settling Manager and manage the litigation-related provisions of this Agreement.. | |
5 | Permits new Manager to replace insolvent Manager and manage all aspects of this Master AAU. |
21
X. REPRESENTATIONS AND COVENANTS OF UNDERWRITERS
10.1. Knowledge of Offering. You acknowledge that it is your responsibility to examine the
Registration Statement, the Prospectus, or the Offering Circular, as the case may be, any amendment
or supplement thereto relating to the Offering, any Preliminary Prospectus or Preliminary Offering
Circular, and the material, if any, incorporated by reference therein, any Issuer Free Writing
Prospectus, any Supplemental Materials, and any ABS Underwriter Derived Information, and you will
familiarize yourself with the terms of the Securities, any applicable Indenture, and the other
terms of the Offering thereof which are to be reflected in the Prospectus or the Offering Circular,
as the case may be, and the applicable AAU and Underwriting Agreement. The Manager is authorized,
with the advice of counsel for the Underwriters, to approve on your behalf any amendments or
supplements to the documents described in the preceding sentence.
10.2. Accuracy of Underwriters’ Information. You confirm that the information that you have
given and are deemed to have given in response to the Underwriters’ Questionnaire attached as
Exhibit A hereto (and to any other questions addressed to you in the Invitation Wire or other
Wires), which information has been furnished to the Issuer for use in the Registration
Statement, Prospectus, or Offering Circular, as the case may be, or has otherwise been relied
upon in connection with the Offering, is complete and accurate. You will notify the Manager
immediately of any development before the termination of the applicable AAU which makes untrue or
incomplete any information that you have given or are deemed to have given in response to the
Underwriters’ Questionnaire (or such other questions).
10.3. Name; Address. Unless you have promptly notified the Manager In Writing otherwise, your
name as it should appear in the Registration Statement, Prospectus or Offering Circular and any
advertisement, if different, and your address, are as set forth on the signature pages hereof.
10.4. Compliance with Capital Requirements. You represent that your commitment to purchase
the Securities will not result in a violation of the financial responsibility requirements of Rule
15c3-1 under the 1934 Act or of any similar provision of any applicable rules of any securities
exchange to which you are subject or, if you are a financial institution subject to regulation by
the Board of Governors of the U.S. Federal Reserve System, the U.S. Comptroller of the Currency, or
the U.S. Federal Deposit Insurance Corporation, will not place you in violation of any applicable
capital requirements or restrictions of such regulator or any other regulator to which you are
subject.
10.5. FINRA Requirements. You represent that you are a member in good standing of FINRA, or a
non-U.S. bank, broker, dealer, or institution not eligible for membership in FINRA or a Bank. If
you are a member of FINRA, you will comply with all applicable rules of FINRA, including, without
limitation: (a) the requirements of FINRA Rule 5130, and (b) the requirements of NASD Conduct Rule
2740 or any FINRA successor rule thereto, and you will not grant any concessions, discounts, or
other allowances which are not permitted by that Rule. If you are a non-U.S. bank, broker, dealer,
or institution not eligible for membership in FINRA, you will not make any sales of the Securities
in, or to nationals or residents of, the United States, its territories, or its possessions, except
to the extent permitted by Rule 15a-6 or any successor
22
rule thereto, and that in making any sales
of the Securities you will comply, as though you are a member of FINRA, with the requirements of
the following rules (including any FINRA successor rules thereto): (a) FINRA Rule 5130, (b) NASD
Conduct Rules 2730, 2740, and 2750, and (c) NASD Conduct Rule 2420, as that Rule applies to a
non-member broker/dealer in a non-U.S. country. If you are a Bank, you will not accept any portion
of the management fee paid by the Underwriters with respect to any Offering or, in connection with
any Offering of Securities that do not constitute “exempted securities” within the meaning of
Section 3(a)(12) of the 1934 Act, purchase any Securities at a discount from the offering price
from any Underwriter or Dealer or otherwise accept any Fees and Commissions from any Underwriter or
Dealer, which in any such case is not permitted under NASD’s Rules of Fair Practice (or any FINRA
successor rules thereto), and you will comply with NASD Conduct Rule 2420 (or any FINRA successor
rule thereto) as though you were a member.
10.6. Further State Notice. The Manager will file a Further State Notice with the Department
of State of New York, if required.
10.7. Compliance with Rule 15c2-8. In the case of a Registered Offering and any other
Offering to which the provisions of Rule 15c2-8 under the 1934 Act are made applicable
pursuant to the AAU or otherwise, you will comply with such Rule in connection with the
Offering. In the case of an Offering other than a Registered Offering, you will comply with
applicable Federal and state laws and the applicable rules and regulations of any regulatory body
promulgated thereunder governing the use and distribution of offering circulars by underwriters.
10.8. Discretionary Accounts. In the case of a Registered Offering of Securities issued by an
Issuer that was not, immediately prior to the filing of the Registration Statement, subject to the
requirements of Section 13(d) or 15(d) of the 1934 Act, you will not make sales to any account over
which you exercise discretionary authority in connection with such sale, except as otherwise
permitted by the applicable AAU for such Offering.
10.9. Offering Restrictions. You will not make any offers or sales of Securities or any Other
Securities in jurisdictions outside the United States except under circumstances that will result
in compliance with (i) applicable laws, including private placement requirements, in each such
jurisdiction and (ii) the restrictions on offers or sales set forth in any AAU or the Prospectus,
Preliminary Prospectus, Offering Circular, or Preliminary Offering Circular, as the case may be.
It is understood that, except as specified in the Prospectus or Offering Circular or
applicable AAU, no action has been taken by the Manager, the Issuer, the Guarantor, or the Seller
to permit you to offer Securities in any jurisdiction other than the United States, in the case of
a Registered Offering, where action would be required for such purpose.
10.10. Representations, Warranties, and Agreements. You will make to each other Underwriter
participating in an Offering the same representations, warranties, and agreements, if any, made by
the Underwriters to the Issuer, the Guarantor, or the Seller in the applicable Underwriting
Agreement or any Intersyndicate Agreement, and you authorize the Manager to make such
representations, warranties, and agreements to the Issuer, the Guarantor, or the Seller on your
behalf.
23
10.11. Limitation on the Authority of the Manager to Purchase and Sell Securities for the
Account of Certain Underwriters. Notwithstanding any provision of this AAU authorizing the Manager
to purchase or sell any Securities or Other Securities (including arranging for the sale of
Contract Securities) or over-allot in arranging sales of Securities for the accounts of the several
Underwriters, the Manager may not, in connection with the Offering of any Securities, make any such
purchases, sales, and/or over-allotments for the account of any Underwriter that, not later than
its acceptance of the Invitation Wire relating to such Offering, has advised the Manager that, due
to its status as, or relationship to, a bank or bank holding company such purchases, sales, and/or
over-allotments are prohibited by applicable law. If any Underwriter so advises the Manager, the
Manager may allocate any such purchases, sales, and over-allotments (and the related expenses)
which otherwise would have been allocated to your account based on your respective Underwriting
Percentage to your account based on the ratio of your Original Underwriting Obligation to the
Original Underwriting Obligations of all Underwriters other than the advising Underwriter or
Underwriters, or in such other manner as the Manager will determine.
10.12. Electronic Distribution. By participating in the Offering or accepting the Invitation
Wire, you will be deemed to be representing that either: (a) you are not making an online
distribution; or (b) if you are making an online distribution, you are following procedures for
online distributions previously reviewed by members of the Staff of the Division of Corporation
Finance of the Commission, such members raised no objections to the procedures reviewed, and there
have been no material changes to your procedures since that review.
10.13. Agreement Regarding Oral Due Diligence. By participating in an Offering, each
Underwriter agrees that it, each of its affiliates participating in an Offering as Underwriter or
financial intermediary and each controlling person of it and each such participating affiliate are
bound by the Agreement Regarding Oral Due Diligence currently in effect between Xxxxx Fargo
Securities and the accounting firm or firms that participate in oral due diligence in such
offering.
XI. DEFAULTING UNDERWRITERS
11.1. Effect of Termination. If the Underwriting Agreement is terminated as permitted by the
terms thereof, your obligations hereunder with respect to the Offering of the Securities will
immediately terminate except: (a) as set forth in Section 9.8 hereof, (b) that you will remain
liable for your Underwriting Percentage (or such other percentage as may be specified pursuant to
Section 9.2 hereof) of all expenses, and for any purchases or sales which may have been made for
your account pursuant to the provisions of Article V hereof or any Intersyndicate Agreement, and
(c) that such termination will not affect any obligations of any defaulting or breaching
Underwriter.
11.2. Sharing of Liability. If any Underwriter defaults in its obligations: (a) pursuant to
Section 5.1, 5.2 or 5.4 hereof, (b) to pay amounts charged to its account pursuant to Section 7.1,
7.2, or 8.1 hereof, or (c) pursuant to Section 9.2, 9.3, 9.4, 9.5, 9.6, or 11.1 hereof, you will
assume your proportionate share (determined on the basis of the respective Underwriting Percentages
of the non-defaulting Underwriters) of such obligations, but no such assumption will relieve any
defaulting Underwriter from liability to the non-defaulting Underwriters, the Issuer, the
Guarantor, or the Seller for its default.
24
11.3. Arrangements for Purchases. The Manager is authorized to arrange for the purchase by
others (including the Manager or any other Underwriter) of any Securities not purchased by any
defaulting Underwriter in accordance with the terms of the applicable Underwriting Agreement or, if
the applicable Underwriting Agreement does not provide arrangements for defaulting Underwriters, in
the discretion of the Manager. If such arrangements are made, the respective amounts of Securities
to be purchased by the remaining Underwriters and such other person or persons, if any, will be
taken as the basis for all rights and obligations hereunder, but this will not relieve any
defaulting Underwriter from liability for its default.
XII. MISCELLANEOUS
12.1. Obligations Several. Nothing contained in this Master AAU or any AAU constitutes you
partners with the Manager or with the other Underwriters, and the obligations of you and each of
the other Underwriters are several and not joint. Each Underwriter elects to be
excluded from the application of Subchapter K, Chapter 1, Subtitle A, of the U.S. Internal
Revenue Code of 1986. Each Underwriter authorizes the Manager, on behalf of such Underwriter, to
execute such evidence of such election as may be required by the U.S. Internal Revenue Service.
12.2. Liability of Manager. The Manager will not be liable to you for any act or omission,
except for obligations expressly assumed by the Manager in the applicable AAU.
12.3. Termination of Master AAU. This Master AAU may be terminated by either party hereto
upon five business days’ written notice to the other party; provided, however, that with respect to
any Offering for which an AAU was sent prior to such notice, this Master AAU as it applies to such
Offering will remain in full force and effect and will terminate with respect to such Offering in
accordance with Section 9.1 hereof.
12.4. Governing Law. This Master AAU and each AAU will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made and to be performed
in the State, without giving effect to principles of conflicts of law. You hereby irrevocably:
(a) submit to the jurisdiction of any court of the State of New York located in the City of New
York or the U.S. District Court for the Southern District of the State of New York for the purpose
of any suit, action, or other proceeding arising out of this Master AAU, or any of the agreements
or transactions contemplated hereby (each, a “Proceeding”), (b) agree that all claims in respect of
any Proceeding may be heard and determined in any such court, (c) waive, to the fullest extent
permitted by law, any immunity from jurisdiction of any such court or from any legal process
therein, (d) agree not to commence any Proceeding other than in such courts, and (e) waive, to the
fullest extent permitted by law, any claim that such Proceeding is brought in an inconvenient
forum.
12.5. Amendments. This Master AAU may be amended from time to time by consent of the parties
hereto. Your consent will be deemed to have been given to an amendment to this Master AAU, and
such amendment will be effective, five business days following written notice to you of such
amendment if you do not notify us In Writing prior to the close of business on such fifth business
day that you do not consent to such amendment. Upon effectiveness, the
25
provisions of this Master
AAU as so amended will apply to each AAU thereafter entered into, except as otherwise specifically
provided in any such AAU.
12.6. Notices. Any notice to any Underwriter will be deemed to have been duly given if
mailed, sent by wire, telecopy or electronic transmission or other written communication, or
delivered in person to such Underwriter at the address set forth in its Underwriters’
Questionnaire, or if no address is provided in an Underwriters’ Questionnaire, then at the address
set forth in reports filed by such Underwriter with FINRA. Any such notice will take effect upon
receipt thereof.
12.7. Severability. In case any provision in this Master AAU is deemed invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining provisions will not in
any way be affected or impaired thereby.
12.8. Counterparts. This Master AAU may be executed in any number of counterparts, each of
which will be deemed to be an original, and all of which taken together constitute one and the same
instrument. Transmission by telecopy of an executed counterpart of this Master AAU will constitute
due and sufficient delivery of such counterpart.
26
Please confirm your acceptance of this Master AAU by signing and returning to us the enclosed
duplicate copy hereof.
XXXXX FARGO SECURITIES, LLC |
||||
By: | ||||
Name: | ||||
Title: | Director (Authorized Officer) |
|||
Confirmed and accepted
as of July 6, 2009
as of July 6, 2009
(Legal Name of Underwriter) | ||||
(Address) | ||||
By: |
||||
Name: |
||||
Title: |
||||
(Authorized Officer) |
(If person signing is not an officer
or a partner, please attach instrument
of authorization)
or a partner, please attach instrument
of authorization)
27
GUIDE TO DEFINED TERMS
Term | Section Reference | ||
1933 Act | 1.1 | ||
1934 Act | 3.5 | ||
AAU | Foreword | ||
ABS Underwriter Derived Information | 2.1 | ||
Action | 9.3 | ||
Additional Securities | 1.1 | ||
Bank | 3.5 | ||
Co-Managers | 1.1 | ||
Commission | 2.1 | ||
Contract Securities | 3.1 | ||
Contributing Underwriters | 9.5 | ||
Dealer | 3.5 | ||
DTC | 5.2 | ||
Fees and Commissions | 1.1 | ||
FINRA | 3.1 | ||
Firm Securities | 1.1 | ||
Free Writing Prospectus | 2.1 | ||
Guarantor | 1.1 | ||
In Writing | 1.2 | ||
Indemnified Party | 9.4 | ||
Indenture | 1.1 | ||
International Offering | 1.1 | ||
Intersyndicate Agreement | 2.3 | ||
Invitation Wire | Foreword | ||
Issuer | 1.1 | ||
Issuer Free Writing Prospectus | 3.3 | ||
Issuer Information | 3.3 | ||
Judgment Credit | 9.7 | ||
Litigation | 9.4 | ||
Losses | 9.4 | ||
Manager | 1.1 | ||
Master AAU | Foreward | ||
NASD | 3.1 | ||
Offering | Foreword | ||
Offering Circular | 2.2 | ||
Offering Date | 3.2 | ||
Offering Price | 1.1 | ||
Original Underwriting Obligation | 1.1 | ||
Preliminary Offering Circular | 2.2 | ||
Preliminary Prospectus | 2.1 | ||
Pricing Date | 1.1 | ||
Proceeding | 12.4 | ||
Prospectus | 2.1 | ||
Purchase Price | 1.1 |
28
Term | Section Reference |
QIU | 9.4 | |
Reallowance | 1.1 | |
Registered Offering | 2.1 | |
Registration Statement | 2.1 | |
Regulation M | 5.1 | |
Representative | 1.1 | |
Securities | 1.1 | |
Securities Offering Reform Release | 2.1 | |
Seller | 1.1 | |
Selling Concession | 1.1 | |
Settlement Date | 1.1 | |
Supplemental Materials | 3.3 | |
Syndicate Counsel | 9.6 | |
Trustee | 1.1 | |
Unauthorized Material | 3.3 | |
Underwriter Free Writing Prospectus | 3.3 | |
Underwriters | 1.1 | |
Underwriters’ Securities | 3.1 | |
Underwriting Agreement | 1.1 | |
Underwriting Percentage | 1.1 | |
Xxxxx Fargo Securities | Foreword | |
Wire | Foreword |
EXHIBIT A
XXXXX FARGO SECURITIES, LLC
UNDERWRITERS’ QUESTIONNAIRE
In connection with each Offering governed by the Xxxxx Fargo Securities, LLC Master Agreement
Among Underwriters dated July 6, 2009 except as indicated in a timely acceptance of the Invitation
Wire pursuant to Section 1.2 of the Master Agreement Among Underwriters (“Master AAU”), each
Underwriter participating in such Offering severally advises the Issuer that, other than as
disclosed in the Preliminary Prospectus or Preliminary Offering Circular, as the case may be
(capitalized terms used herein and not otherwise defined herein will have the meanings given to
them in the Master AAU):
(a) neither such Underwriter nor any of its directors, officers, or partners have a
material relationship, as “material” is defined in Regulation C under the 1933 Act, with the
Issuer, the Guarantor, or the Seller;
(b) if the Registration Statement is on Form S-1, neither such Underwriter nor any
“group” (as that term is used in Section 13(d)(3) of the Securities Exchange Act of 1934) of
which such Underwriter is aware is the beneficial (as that term is used in Section 13(d)(3)
of the Securities Exchange Act of 1934) owner of more than 5% of any class of voting
securities of the Issuer or Guarantor, nor does such Underwriter have any knowledge that
more than 5% of any class of voting securities of the Issuer or the Guarantor is held or to
be held subject to any voting trust or other similar agreement, nor does such Underwriter
have any knowledge that more than 5% of any class of voting securities of the Issuer or the
Guarantor is held or to be held subject to any voting trust or other similar agreement;
(c) other than as may be stated in the Xxxxx Fargo Securities, LLC Master Agreement
Among Underwriters dated July 6, 2009, the applicable AAU, the Intersyndicate Agreement or
dealer agreement, if any, the Prospectus, the Registration Statement, or the Offering
Circular, such Underwriter does not know and has no reason to believe that there is an
intention to over-allot or that the price of any security may be stabilized to facilitate
the offering of the Securities;
(d) other than as may be stated in the Prospectus or the Offering Circular, as the case
may be, or the Invitation Wire, such Underwriter does not know of any other discounts or
commissions to be allowed or paid to the Underwriters or of any other items that would be
deemed by the Financial Industry Regulatory Authority (“FINRA”) to constitute underwriting
compensation for purposes of FINRA Rule 5110, and such Underwriter does not know of any
discounts or commissions to be allowed or paid to dealers, including all cash, securities,
contracts, or other consideration to be received by any dealer in connection with the sale
of the Securities;
(e) such Underwriter has not prepared any report or memorandum for external use in
connection with the Offering;
2
(f) if the offer and sale of the Securities are to be registered under the 1933 Act
pursuant to a Registration Statement on Form S-1 or Form F-1, such Underwriter has not
within the past 12 months prepared or had prepared for such Underwriter any engineering,
management, or similar report or memorandum relating to broad aspects of the business,
operations, or products of the Issuer or the Guarantor. The immediately preceding sentence
does not apply to reports solely comprised of recommendations to buy, sell, or hold the
Issuer’s or the Guarantor’s securities, unless such recommendations have changed within the
past six months, or to information already contained in documents filed with the Commission;
(g) such Underwriter is not an “affiliate” of the Issuer or the Guarantor for purposes
of the NASD Conduct Rule 2720 (or any FINRA successor rule thereto). Such Underwriter
understands that under Rule 2720 (except as provided in Rule 2720(b)(1)(C) thereof) two
entities are “affiliates” of each other if one entity controls, is controlled by, or is
under common control with, the second entity and that “control” is presumed to exist if one
entity (or, in the case of a FINRA member, the entity and all “persons associated with” it
(as defined by FINRA)) beneficially owns 10% or more of the second entity’s outstanding
voting securities or, if the second entity is a partnership, if the first entity has a
partnership interest in 10% or more of the second entity’s distributable profits or losses;
(h) in the case of Registered Offerings and Offerings of Securities exempt under
Section 3 of the 1933 Act, and if the Securities are not investment grade debt
securities or preferred stock, or equity securities for which there exists a “bona fide
independent market” (as defined in NASD Conduct Rule 2720(b)(3) or any FINRA successor rule
thereto) or otherwise exempted under NASD Conduct Rule 2720(b)(7)(D) (or any FINRA successor
rule thereto), such Underwriter does not have a “conflict of interest” with the Issuer or
the Guarantor under NASD Conduct Rule 2720 (or any FINRA successor rule thereto). In that
regard, such Underwriter specifically confirms that such Underwriter, the “parent” of (as
defined in Rule 2720), affiliates, and “persons associated with” such Underwriter (as
defined by FINRA), in the aggregate do not: (a) beneficially own 10% or more of the Issuer’s
or the Guarantor’s “common equity,” “preferred equity,” or “subordinated debt”
(as each such term is defined in Rule 2720), or (b) in the case of an Issuer or Guarantor
which is a partnership, beneficially own a general, limited, or special partnership interest
in 10% or more of the Issuer’s or Guarantor’s distributable profits or losses;
(i) other than as may be stated in the Prospectus or the Offering Circular, as the case
may be, in the case of Registered Offerings and Offerings of Securities exempt under Section
3 of the 1933 Act, neither such Underwriter nor any of its directors, officers, partners, or
“persons associated with” such Underwriter (as defined by FINRA) nor, to such Underwriter’s
knowledge, any “related person” (defined by FINRA to include counsel, financial consultants
and advisors, finders, members of the selling or distribution group, any FINRA member
participating in the offering, and any other persons associated with or related to and
members of the immediate family of any of the foregoing) or any other broker-dealer: (A)
within the last six months have purchased in private transactions, or intend before, at, or
within six months after the commencement of
3
the public offering of the Securities to purchase in private transactions, any
securities of the Issuer, the Guarantor, or any Issuer Related Party (as hereinafter
defined), (B) within the last 6 months have had any dealings with the Issuer, the Guarantor,
any Seller, or any subsidiary or controlling person thereof (other than relating to the
proposed Underwriting Agreement) as to which documents or information are required to be
filed with FINRA, or (C) during the 6 months immediately preceding the filing of the
Registration Statement (or, if there is none, the Offering Circular), have entered into any
arrangement which provided or provides for the receipt of any item of value (including, but
not limited to, cash payments and expense reimbursements) and/or the transfer of any
warrants, options, or other securities from the Issuer, the Guarantor, or any Issuer Related
Party to you or any related person;
(j) in the case of Registered Offerings and Offerings of Securities exempt under
Section 3 of the 1933 Act, there is no association or affiliation between such Underwriter
and; (A) any officer or director of the Issuer, the Guarantor or, any Issuer Related Party,
or (B) any securityholder of 5% or more (or, in the case of an initial public offering of
equity securities, any securityholder) of any class of securities of the Issuer, the
Guarantor, or an Issuer Related Party; it being understood that for purposes of paragraph
(i) above and this paragraph (j), the term “Issuer Related Party” includes any Seller, any
affiliate of the Issuer, the Guarantor, or a Seller, and the officers or general partners,
directors, employees, and securityholders thereof;
(k) in the case of Registered Offerings and Offerings of Securities exempt under
Section 3 of the 1933 Act, and if the Securities are not issued by a real estate
investment trust, no portion of the net offering proceeds from the sale of the Securities
will be paid to such Underwriter or any of its affiliates or “persons associated with” such
Underwriter (as defined by FINRA) or members of the immediate family of any such person; and
(l) in the case of Securities which are debt securities whose offer and sale is to be
registered under the 1933 Act, such Underwriter is not an affiliate (as defined in Rule 0-2
under the Trust Indenture Act of 1939) of the Trustee for the Securities or of its parent,
if any. Neither the Trustee nor its parent, if any, nor any of their directors or executive
officers is a “director, officer, partner, employee, appointee, or representative” of such
Underwriter (as those terms are defined in the Trust Indenture Act of 1939 or in the
relevant instructions to Form T-1). Such Underwriter and its directors, partners, and
executive officers, taken as a group, did not on the date specified in the Invitation, and
do not, own beneficially 1% or more of the shares of any class of voting securities of the
Trustee or of its parent, if any. If such Underwriter is a corporation, it does not have
outstanding and has not assumed or guaranteed any securities issued otherwise than in its
present corporate name.
If an Underwriter notes an exception with respect to material of the type referred to in
clauses (e) and (f), such underwriter will send three copies of each item of such material,
together with a statement as to distribution, identifying classes of recipients and the number of
copies distributed to each such class, and, if relevant, the number of equity securities or the
face value of debt securities owned by such person, the date such securities were acquired, and the
4
price paid for such securities to Xxxxx Fargo Securities, LLC, Attention: Syndicate
Department, at the address noted in the Invitation Wire.