UP TO 420,000 LIMITED PARTNERSHIP INTERESTS of ICON ECI FUND FIFTEEN, L.P. (a Delaware limited partnership) DEALER-MANAGER AGREEMENT
EXHIBIT 1.1
UP
TO 420,000 LIMITED PARTNERSHIP INTERESTS
of
(a
Delaware limited partnership)
|
ICON
Securities Corp.
|
Date:
[_________]
|
|
000
Xxxxx Xxxxxx, 0xx
Xxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
Ladies
and Gentlemen:
Reference
is made to the enclosed prospectus, as supplemented or amended at the time the
related registration statement becomes effective (the “Prospectus”), relating to
the offering by ICON ECI Fund Fifteen, L.P., a Delaware limited partnership,
which is an equipment fund (the “Partnership”), of limited partnership interests
(the “Interests”). The Interests and the terms upon which they are offered are
more fully described in the Prospectus.
We are
entering into this Agreement with you, effective as of the date hereof, as
exclusive managing sales agent (the “Dealer-Manager”), pursuant to which you are
authorized to select and provide sales support to a group of broker-dealers (the
“Selling Dealers”), which are members of the Financial Industry Regulatory
Authority, Inc. (“FINRA”), that, together with you, will offer directly to the
general public, on a “best efforts” basis, a total maximum offering of (i) up to
400,000 Interests at a public offering price of $1,000.00 per Interest (the
“Primary Offering”) and (ii) up to 20,000 Interests at a public offering
price of $900.00 per Interest issued pursuant to the Partnership’s distribution
reinvestment plan (the “DRIP Offering,” together with the Primary Offering, the
“Offering”). We may, at any time prior to the two-year anniversary of the date
the Offering commences, increase the Primary Offering to a maximum of up to
600,000 Interests; provided, however, that the Offering Period (as defined
below) may not be extended in connection with such change.
Each
Selling Dealer selected by you is authorized by its selling dealer agreement
(the “Selling Dealer Agreement”), and you are hereby authorized, to find
purchasers for the Interests who satisfy the suitability standards set forth in
the Prospectus during the Offering Period (as defined below) and that are
acceptable to the Partnership. The date on which the Offering shall terminate is
the earlier of
(i) the second anniversary of the Effective Date (as defined in the Prospectus)
of the registration statement, as amended at the time it becomes effective (the
“Registration Statement”) (with the offering of Interests in certain States for
more than 12 months subject to the approval of the State securities commission
or agency of such States) or (ii) the date on which all Interests available for
sale are sold, unless the Offering is earlier terminated (hereinafter called the
“Termination Date”), with notice to you by ICON GP 15, LLC, the General Partner
of the Partnership (the “General Partner”). The period between the Effective
Date of the Registration Statement and the Termination Date is hereinafter
called the “Offering Period.” Each date on which any investor is admitted to the
Partnership (thereby becoming a “Limited Partner”) is hereinafter called a
“Closing Date.”
The
Partnership will accept subscriptions for the Interests subject to the
Partnership’s right to terminate the Offering at any time with notice to you and
to reject any subscription in whole or in part, in its sole discretion. The
acceptance of subscriptions is further subject to the following terms and
conditions:
1. Appointment as
Dealer-Manager. We hereby authorize you to act as the Dealer-Manager
during the Offering Period and, on a “best efforts” (and not “firm commitment”)
basis only, to offer, and to enter into Selling Dealer Agreements on behalf of
the Partnership authorizing each such Selling Dealer to offer, Interests
directly to potential investors that (a) satisfy the investor suitability
standards (i) set forth in the Prospectus, (ii) provided under applicable State
laws and (iii) provided in FINRA’s Rules and (b) are acceptable to the
Partnership (the “Eligible Investors”). As Dealer-Manager, you agree to act as
an independent contractor and not as our agent or as agent for the Partnership
in connection with your solicitation of subscriptions for Interests and will
therefore be responsible for assuring that each investor satisfies all such
suitability requirements. You hereby agree that you will not make
representations or give information not contained in (x) the Prospectus or (y)
any sales material that, if required, has been reviewed and approved by the
appropriate regulatory agencies, which we have supplied to you for your use (as
described in greater detail in Section 5 of this Agreement).
2. Subscriptions for
Interests. You shall (a) find Eligible Investors for the Interests,
(b) keep records of the basis for each determination by a member of, or
person associated with, your firm of an investor’s suitability and (c) promptly
forward each fully completed and executed copy of the subscription agreement,
which shall be in the form of Exhibit C to the Prospectus (the “Subscription
Agreement”), as signed by each investor and countersigned by a supervisory
representative of your firm, together with the related subscription payment in
the form of a check made payable to “[_____] as Escrow Agent for ICON Fund 15”
pending receipt and acceptance by the General Partner of subscriptions for 1,200
Interests in the Primary Offering and thereafter (except for residents of the
Commonwealth of Pennsylvania who must continue to make checks payable to the
Escrow Account until subscriptions for 20,000 Interests have been received and
accepted in the Primary Offering) in the form of a check made payable to “ICON
Fund 15” to:
2
ICON
Capital Corp.
000 Xxxxx
Xxxxxx, 0xx Xxxxx
Xxx Xxxx,
XX 00000
Each
Subscription Agreement and related subscription payment shall be forwarded by
your firm to the General Partner at the foregoing address no later than noon of
the next business day after receipt from your customer by any member of, or
person associated with, your firm of such payment, unless such Subscription
Agreement and payment are first forwarded to another of your offices for
internal supervisory review (which shall take place within the aforementioned
time period), in which event such other office shall complete its review and
forward such Subscription Agreement and payment to the above address no later
than noon of the next business day after its receipt thereof. Notwithstanding
the foregoing, any investor’s check not properly completed as described above
shall be promptly returned to such investor not later than the next business day
following your receipt of such check. Each subscription so received by the
General Partner will be subject to acceptance or rejection by it by the end of
the business day on which it is received. Each such subscription payment
received by us and accepted by the General Partner will be transmitted, as soon
as practicable, but in any event by the end of the second business day following
our receipt thereof, to [_____] (the “Escrow Agent”) for deposit in an
interest-bearing bank account insured by the Federal Deposit Insurance
Corporation, which shall be an escrow account in the name of Escrow Agent
pending the receipt of subscriptions for an aggregate of 1,200 Interests in the
Primary Offering (excluding those subscriptions received from residents of the
Commonwealth of Pennsylvania, for which an escrow account will be maintained
until such time as subscriptions for 20,000 Interests have been received from
investors in the Primary Offering in all jurisdictions) and thereafter will be
deposited in a segregated subscription account maintained solely for such
purpose by the Partnership. We undertake to promptly return directly to you for
return to any of your customers whose subscriptions are not accepted by the
General Partner, their Subscription Agreements together with the related
subscription payment within two business days of our receipt of same. Unless and
until an event requiring a refund occurs, an investor will have no right to
withdraw his or her subscription payment from escrow. The General Partner has
reserved the unconditional right to refuse to accept, in whole or in part, any
subscription and related payment and to refuse to accept as an investor any
person for any reason whatsoever or no reason.
Unless
subscriptions for at least 1,200 Interests are received and accepted by the
General Partner in the Primary Offering (excluding subscriptions for Interests
from residents of the Commonwealth of Pennsylvania) on or before the Termination
Date, the Partnership will promptly refund all subscription payments received by
it in full with interest earned thereon, if any, and without deduction for any
expenses, and the Offering shall thereupon terminate. Promptly after receiving
and accepting subscriptions for 1,200 Interests in the Primary Offering
(excluding subscriptions for Interests from residents of the Commonwealth of
Pennsylvania), the General Partner will notify the Escrow Agent that Schedule A
to the Partnership’s limited partnership agreement (the “Partnership Agreement”)
has been amended to admit as Limited Partners investors (other than those who
are residents of the Commonwealth of Pennsylvania) for whom subscriptions have
been accepted, and the Escrow Agent is to pay over promptly to the Partnership
the amount of all of such investors’ subscription payments then on deposit
(excluding those from residents of the Commonwealth of Pennsylvania), including
interest earned thereon. The date upon which such admission of Limited Partners
shall occur is hereinafter called the “Initial Closing Date.” Under regulations
of the Commonwealth of Pennsylvania, until subscriptions for 5% (or $20,000,000)
of the maximum in the Primary Offering have been received, the subscription
payments of Pennsylvania residents must be held in escrow. After subscriptions
equaling $20,000,000 for the residents of all jurisdictions including
Pennsylvania have been received in the Primary Offering, all remaining
subscriptions being held in escrow will be released from escrow upon the next
Closing Date and the applicable investors will be admitted to the Partnership as
Limited Partners (in the manner described in the preceding
sentence).
3
Following
the Initial Closing Date, the General Partner will continue to accept
subscriptions for additional Interests during the remainder of the Offering
Period and to admit to the Partnership as Limited Partners investors whose
subscriptions are accepted. Such admissions will take place from time to time as
shall be determined by the General Partner, with the anticipation that Closing
Dates subsequent to the Initial Closing Date will occur as frequently as daily,
but not less frequently than twice each month, following the Initial Closing
Date and promptly following the end of the Offering Period or earlier
termination of the Offering.
In
connection with the Offering, the Partnership will pay you:
(a) sales
commissions in an amount equal to 7.0% of the total purchase price of all
Interests sold through your efforts in the Primary Offering (the “Sales
Commissions”), except for sales of Interests to (i) officers, employees and
securities representatives of the Dealer-Manager, the General Partner, their
affiliates and each Selling Dealer (the “Affiliated Members”), who may purchase
Interests for a net price of $930.00 per Interest and as to which no Sales
Commissions are payable, (ii) investors by registered investment advisers
who do not charge a commission in connection
with an investment in Interests (the “RIA Members”), who may purchase Interests
for a net price of $930.00 per Interest and as to which no Sales Commissions are
payable, and (iii) participants in the distribution reinvestment plan for
Interests sold through reinvestment of those investors’ distributions, pursuant
to the DRIP Offering, in which case no Sales Commissions will be paid by the
Partnership on such Interests sold through reinvestment. Purchases of Interests
by Affiliated Members and RIA Members shall be for their own accounts, for
investment purposes only and not with a view toward resale or other distribution
and, with respect to Affiliated Members, shall be limited to a maximum of 10% of the total Interests sold in the
Offering.
(b) an
underwriting fee (the “Underwriting Fee”) equal to $30.00 for every Interest
actually sold by you, your registered representatives and registered
representatives of all Selling Dealers in the Primary Offering for your services
in supervising the sale of Interests, for costs and expenses incurred in
connection with holding or attending bona fide training and education seminars
and conferences in compliance with FINRA’s Rules and to reimburse you,
on a non-accountable basis, for wholesaling fees and marketing
expenses.
The total
compensation to be paid to you in connection with the Primary Offering,
including Sales Commissions and Underwriting Fees, shall not exceed 10.0% of the
gross offering proceeds from the sale of Interests. Bona fide due diligence fees
and expenses reimbursements (if any) shall be paid upon receipt of a detailed
and itemized invoice in accordance with FINRA’s Rules.
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All such
compensation will be paid by the Partnership within 30 days after each Closing
Date in respect of subscriptions submitted by investors who were admitted to the
Partnership on such Closing Date. No compensation will be paid with respect to
subscriptions (or portions thereof) that have been rejected by the General
Partner, or in the event the minimum offering for 1,200 Interests is not
successfully completed.
Sales
Commissions with respect to Interests actually sold by you or your registered
representatives and Underwriting Fees with respect to all Interests sold (by you
or by any Selling Dealers) will be due and payable to you within 30 days of each
Closing Date on which the investors for such Interests are admitted as Limited
Partners.
3. Termination of
Agreement. The provisions of this Agreement relating to the Offering
shall terminate as to the Partnership upon the completion of the Offering Period
or earlier termination of the Offering, and may be terminated by you or us as
specified in Section 10 of this Agreement, subject to the survival of all
provisions hereof which by their nature are intended to survive termination of
this Agreement.
4. Limitations on
Payments. You agree that neither you nor any salesperson or registered
representative under your control shall, directly or indirectly, pay or award
any finder’s fees, commissions or other compensation to any person engaged by a
potential investor for investment advice as an inducement to such advisor to
advise the purchase of Interests; provided, however, that this provision shall
not prohibit the normal sales commission payable to any properly licensed person
for selling Interests. In addition, you agree not to receive any rebates or
give-up or participate in any reciprocal business arrangements (other than the
securities distribution arrangements specified in the Prospectus) which would
violate any restriction on the Partnership contained in the
Prospectus.
5. Supplemental Sales
Material.
Supplemental
sales materials shall be categorized as either:
(a) “Broker/Dealer Use
Only” educational materials, which shall be defined for purposes of this
Agreement as materials prepared for or by the Partnership for the sole purpose
of educating you in your preparation to solicit the sale of Interests in the
Offering and shall not be used by you with members of the general investing
public and, to the extent required, have been submitted to, reviewed by and
approved by the appropriate regulatory agencies (“B/D Use Only Materials”)
or
(b) Investor sales
materials, which shall be defined as materials prepared for or by the
Partnership which, to the extent required, have been submitted to, reviewed by
and approved by FINRA, the Securities and Exchange Commission (“SEC”) and any
other appropriate regulatory agencies (“Investor Sales Materials” and, together
with B/D Use Only Materials, “Supplemental Sales Materials”).
5
You
acknowledge and agree that only Investor Sales Materials may be used by you with
members of the general investing public. You agree that you will not use any
Supplemental Sales Materials other than the Prospectus (including, inter alia, transmittal
letters, underwriting memoranda, summary descriptions, graphics, supplemental
exhibits, media advertising, charts, pictures, written scripts or outlines),
whether prepared to solicit sales to prospective investors or for the exclusive
use of you and your personnel, except as supplied by the Partnership and
described under the caption “Supplemental Sales Literature” in the Prospectus,
or otherwise specifically described in a written advice from the Partnership
authorizing the type and manner of use. The use of any other Supplemental Sales
Materials is expressly prohibited except to the extent specified in any such
written advice.
6. Right To Sell.
Notwithstanding any information furnished or any action taken by us in that
connection, we shall have no obligation or liability with respect to the
registration or qualification of the Interests in any jurisdiction or the
qualification or right of you or any Selling Dealer to sell or advertise them
therein.
7. Limited Obligations.
Nothing herein contained shall constitute a partnership, association or other
separate entity or partners between or among you, and/or any Selling Dealer and
the Partnership, or with each other, but you shall be responsible for your share
of any liability or expense based upon any claim to the contrary. We shall not
have any liability to you, except for obligations expressly assumed in this
Agreement and any liabilities under the Securities Act of 1933, as amended (the
“Act”), and no other obligations on our part shall be implied hereby or inferred
herefrom.
(a)
Notwithstanding anything to the contrary provided herein, the Partnership will
indemnify and hold you harmless in the manner and solely to the extent specified
in Section 6.3 of the Partnership Agreement (the terms of which are incorporated
herein by reference) against any losses, claims (including any claims of any
Selling Dealers), damages or liabilities, joint or several, to which you may
become subject as a result of entering into, or performing your duties under,
this Agreement, provided that neither the Partnership or the General Partner
will be liable in any case to the extent that it is determined that you were at
fault in connection with any loss, claim, damage or liability.
(b) You
agree to indemnify and hold harmless the General Partner, in its capacity as
general partner of the Partnership, its affiliates and the Partnership against
any losses, claims, damages or liabilities to which the General Partner or the
Partnership may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, provided that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in any Registration Statement, Prospectus or any amendment or supplement to
any Prospectus or Registration Statement in reliance upon and in conformity with
written information furnished to the General Partner by you expressly for use
therein.
6
The
indemnity agreement in subsection (b) shall be in addition to any liability
which you may otherwise have and shall extend, upon the same terms and
conditions, to each member of the Partnership and to each person, if any, who
controls the Partnership within the meaning of the Act.
(c)
Promptly after receipt by an indemnified party under subsection (a) or (b) above
of notice of the commencement of any action, if a claim in respect thereof is to
be made against the indemnifying party under such subsection, such indemnified
party shall notify the indemnifying party in writing of the commencement
thereof; but the omission to so notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in, and, to the
extent that it shall wish, to jointly participate with any other indemnifying
party, similarly notified, in the defense thereof with the indemnified party.
The indemnifying party shall pay all legal fees and expenses of the indemnified
party in the defense of such claims or actions; provided, however, that the
indemnifying party shall not be obliged to pay legal expenses and fees to more
than one law firm in connection with the defense of similar claims arising out
of the same alleged acts or omissions giving rise to such claims,
notwithstanding that such actions or claims are alleged or brought by one or
more parties against one or more than one indemnified party. In case such claims
or actions are alleged or brought against more than one indemnified party, then
the indemnifying party shall be obliged to reimburse the expenses and fees of
only one law firm, selected by a majority of the indemnified parties against
which such action is brought. In the event the majority of such indemnified
parties are unable to agree on a law firm for which expenses or fees will be
reimbursed by the indemnifying party, then payments shall be made to the first
law firm of record representing an indemnified party against the action or
claim. Such law firm shall be paid only to the extent of the services performed
by such law firm and no reimbursement shall be payable to such law firm on
account of legal services performed by another law firm. Notwithstanding
anything contained herein to the contrary, an indemnified party may not settle
or compromise any action brought against such indemnified party without the
prior written consent of the indemnifying party.
8. Representations, Warranties
and Covenants of Dealer-Manager. You represent, warrant and covenant as
of the date this Agreement is executed on behalf of your firm and as of the date
any Subscription Agreement is forwarded to the Partnership or the General
Partner as follows:
7
(a) Qualification of
Dealer-Manager and its Representatives. You hereby represent, warrant and
covenant that you are, and during the Offering Period will continue to be, (i) a
member in good standing of FINRA and (ii) registered as a securities
broker-dealer in those jurisdictions wherein members of, or persons associated
with, your firm will offer or sell the Interests. You also hereby represent,
warrant and covenant that, during the Offering Period, you will only permit
members of, or persons associated with, your firm to offer or sell Interests if
such persons are duly registered or licensed to sell direct participation
program investments by, and in good standing with, FINRA and those jurisdictions
wherein they will offer or sell Interests. You hereby certify that neither your
firm nor any member of your firm has been subject to a fine, a consent decree or
suspension of your or their licenses or registrations within the last three (3)
years for violation of federal or State securities rules, laws or regulations.
You also hereby certify that you will promptly advise the President of the
General Partner of any pending, threatened or current civil or administrative
proceedings during the Offering Period involving alleged violations of such
rules, laws or regulations.
(b) Investor Suitability and
Minimum Investment. You further hereby represent, warrant and covenant
that no member of, or person associated with, your firm shall offer or sell
Interests in any jurisdiction except to investors who satisfy the investor
suitability and minimum investment requirements under the most restrictive of
the following: (i) applicable provisions of the Prospectus, (ii) the laws of the
jurisdiction of which such investor is a resident, and (iii) FINRA rules and
regulations and FINRA Rule 2310, in particular. Specifically, you agree
to ensure that, in recommending the purchase or sale of Interests to an
investor, each member of, or person associated with, your firm shall have
reasonable grounds (as required by Rule 2310(b)(2)(B)(i) of the FINRA Rules) to believe,
on the basis of information obtained from the investor (and
thereafter maintained in the manner and for the period provided in such FINRA
Rules) concerning his or her age, investment objectives, other investments,
financial situation and needs, and any other information known to such member
of, or person associated with, your firm, that (A) the investor is or will be in
a financial position appropriate to enable him or her to realize to a
significant extent the benefits described in the Prospectus, including the tax
benefits to the extent they are a significant aspect of the Partnership; (B) the
investor has a fair market net worth sufficient to sustain the risks inherent in
an investment in Interests in the amount proposed, including complete loss, and
lack of liquidity, of such investment; and (C) an investment in Interests is
suitable in type and amount for such investor. You further represent, warrant
and covenant that you will: (x) require each member of, or person associated
with, your firm to make diligent inquiry as to the suitability and
appropriateness of an investment in Interests from each proposed investor, (y)
retain in your records for a period equal to the longer of (A) six years from
the date of the applicable sale of Interests or (B) five years from the end of
the Offering Period, and (z) make available to us and the Partnership, upon
request (and upon your firm’s receipt of an appropriate document subpoena from
one of the following, to representatives of the SEC, FINRA and applicable State
securities administrators) documents disclosing the basis upon which the
determination as to suitability was reached as to each purchaser of Interests
pursuant to a subscription solicited by your firm, whether such records relate
to accounts which have been closed, accounts which are currently maintained, or
accounts hereafter established. You shall not purchase any Interests for a
discretionary account without obtaining the prior written approval of your
customer and his or her signature on a Subscription Agreement.
8
(c) Compliance with FINRA
Rules. You also hereby agree, represent and covenant that you will
require each member of, or person associated with, your firm to inform any
prospective purchaser of Interests, prior to his or her subscription for
Interests, of all pertinent facts relating to the liquidity and marketability of
an investment in Interests during the term of the investment (as provided in
FINRA Rule 2310(b)(3)(D)). You also hereby agree to fully
comply with all pertinent sections of Article III of FINRA’s Rules of Fair
Practice, including, without limitation, Sections 8, 24, and 36
thereof.
(d) Record-Keeping and
Disclosure. You further agree to keep and make available to the
Partnership such records with respect to each investor, his or her suitability
and the amount of Interests sold, and to retain such records for such period of
time as may be required by the SEC, any State securities commission, FINRA or by
the Partnership. You agree to obtain and to forward to the Partnership any
representation letters or related documents, if any, as are set forth in the
Subscription Agreement.
(e) Delivery of the Prospectus
in Connection with the Sale of Interests. You hereby represent, covenant
and agree that no representative of your firm shall sell, and your firm shall
not endorse and forward any Subscription Agreement to signify the completion of
a subscription for, any Interests unless, in connection therewith, the proposed
purchaser of such Interests has received a current copy of the Prospectus at or
prior to the time that such person has signed his or her Subscription Agreement.
Your firm acknowledges and agrees that such proposed purchaser shall not be
admitted to the Partnership and Interests issued until the later of (i) the next
succeeding Closing Date or (ii) five business days after the date such proposed
purchaser received a copy of the Prospectus (which shall be determined by the
General Partner by the date on which such proposed purchaser signed the
Subscription Agreement).
(f) Compliance with Rule 15c2-8
of the Securities Exchange Act of 1934, as amended. You hereby (i)
represent that neither you nor any person associated with your firm solicited
customers’ orders for Interests prior to the Effective Date; (ii) represent and
agree to take all reasonable steps to make available a copy of the final
Prospectus relating to the Interests to each person associated with your firm
who is expected, after the Effective Date, to solicit customer orders for
Interests prior to the making of any such solicitation by such associated
persons; (iii) agree to take reasonable steps, as Dealer-Manager of this
Offering, to furnish each Selling Dealer with sufficient copies, as requested by
them, of the final Prospectus to enable them to comply with paragraphs (b), (c),
(d) and (e) of Rule 15c2-8 of the Securities Exchange Act of 1934, as amended,
and the prospectus delivery requirements of Section 5(b)(1) and (2) of the Act;
and (iv) agree that neither you, nor any person associated with your firm, will
furnish Prospectuses to any person in any State (e.g. in any State (A) listed as
not cleared on the “Blue-Sky Survey” by counsel to the Partnership or the
Dealer-Manager or (B) in which your firm or any person associated with your firm
who solicits offers to buy or offers to sell Interests is not currently
registered); provided, however, that this provision is not to be construed to
relieve you from complying with the requirements of Section 5(b)(1) and (2) of
the Act. You hereby acknowledge that Prospectuses shall not be furnished by you
or any person associated with your firm to any prospective investor while the
Registration Statement is subject to an examination, proceeding or stop order
pursuant to Section 8 of the Act.
9
(g) Compliance with Title III of
PATRIOT Act. With respect to your customers or any customers solicited by
persons associated with your firm that purchase Interests, you hereby represent
and agree to comply with relevant provisions applicable to securities
broker-dealers of Title III of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) (the “PATRIOT Act”), as well as
FINRA Rule 3310 setting forth minimum standards for Anti-Money Laundering
(“AML”) Programs of broker-dealers. These minimum standards require you to have
implemented a written AML Program reasonably designed to (i) detect traces of
suspicious financial transactions, (ii) achieve compliance with the Bank Secrecy
Act regulations, (iii) provide for independent testing, (iv) designate an
AML Compliance Officer, and (V) provide for ongoing training. Title III of
the PATRIOT Act, 31 U.S.C. §§ 5311, et seq., is referred to as the International
Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (the “Money
Laundering Abatement Act”). Among other applicable requirements under the Money
Laundering Abatement Act, you agree to comply with Section 312 regarding due
diligence requirements, Section 313 regarding correspondent account
prohibitions, Section 314 regarding financial institution cooperation, Section
319(b) regarding domestic and foreign bank records production, Section 326
regarding customer identification standards (as described in greater detail in
Section 8(i) of this Agreement), Section 352 regarding anti-money laundering
compliance program components, and Section 356 regarding suspicious activity
reporting requirements.
(h) Compliance with Privacy
Laws. You hereby represent, warrant and covenant that you and any person
associated with your firm (i) will abide by and comply with (A) the privacy
standards and requirements of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 (“GLB Act”),
(B) the privacy standards and requirements of any other applicable federal
or State law, and (C) your own internal privacy policies and procedures,
each as may be amended from time to time; (ii) will refrain from the use or
disclosure of nonpublic personal information (as defined under the GLB Act) of
all customers who have opted out of such disclosures except as necessary to
service the customers or as otherwise necessary or required by applicable law;
and (iii) will be responsible for determining which customers have opted
out of the disclosure of nonpublic personal information by periodically
reviewing and, if necessary, retrieving a list of such customers (the “List”) to
identify customers that have exercised their opt-out rights. In the event you
use or disclose nonpublic personal information of any customer for purposes
other than servicing the customer, or as otherwise required by applicable law,
you will consult the List to determine whether the affected customer has
exercised his or her opt-out rights. You understand that you are prohibited from
using or disclosing any nonpublic personal information of any customer that is
identified on the List as having opted out of such disclosures.
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(i) Customer Identification
Procedures (“CIP”). You hereby represent, warrant and certify, pursuant
to Section 326 of the PATRIOT Act, that you have implemented reasonable CIP to
(i) verify and identify customers who open new accounts, (ii)
maintain records of the information retrieved from the customer, including the
name, address and other identifying information, and (iii) consult lists of
known or suspected terrorists or terrorist organizations to determine if the
potential investor appears on any such list and will provide us with annual
re-certification of such implementation to the extent reasonably requested by
us.
9. Representations, Warranties,
and Covenants of the Partnership. The Partnership represents, warrants
and covenants as of the date this Agreement is executed as follows:
(a) The
Registration Statement, including the Prospectus, with respect to the Interests
has been (i) prepared by the Partnership in conformity with the requirements of
the Act and the rules and regulations of the SEC promulgated thereunder, (ii)
declared effective under the Act and (iii) filed with the SEC under the Act.
Copies of the Registration Statement and each amendment heretofore filed or
proposed to be filed (and of each related preliminary prospectus) have been
delivered to you.
(b) The
SEC has not issued any order preventing or suspending the use of any preliminary
prospectus or the Prospectus nor are any proceedings for that purpose pending,
threatened or, to the knowledge of the Partnership, contemplated by the SEC. The
Registration Statement and the Prospectus and any further amendments or
supplements thereto, including any post-effective amendments, will, when they
become effective, conform in all material respects to the requirements of the
Act and the rules and regulations of the SEC promulgated thereunder and will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that the Partnership makes no representation or warranty as
to statements or omissions made in reliance upon and in conformity with written
information furnished to the Partnership by you expressly for use
therein.
(c) The
General Partner has been duly organized in the State of Delaware and
is validly existing and in good standing under the laws of the State
of Delaware with power and authority (corporate and other) to conduct its
business and own its properties as described in the Prospectus.
(d) The
Partnership has been duly organized and is validly existing and in good standing
under the laws of the State of Delaware with power and authority to conduct its
business as described in the Prospectus.
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(e)
Except as reflected in or contemplated by the Registration Statement or the
Prospectus, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change in the condition of the Partnership or the General Partner,
financial or otherwise, or any transactions entered into by the Partnership or
the General Partner, other than transactions in the ordinary course of business,
which are required to be disclosed in the Registration Statement or the
Prospectus that are not so disclosed.
(f) The
respective financial statements contained in the Registration Statement and the
Prospectus fairly present the financial condition of the Partnership and the
General Partner as of the dates specified; such financial statements have been
prepared in accordance with generally accepted accounting principles
consistently maintained throughout the periods involved; and Ernst & Young,
LLP, who has reported upon certain of the financial statements of the
Partnership and the General Partner, respectively, is an independent publicly
registered accounting firm as required by the Act and the rules and regulations
promulgated thereunder.
(g) No
consent, approval, authorization or other order of any governmental authority is
required in connection with the execution or delivery by the Partnership of this
Agreement or the issuance and sale by the Partnership of the Interests, except
such as may be required under the Act or any State securities laws.
(h) There
are no actions, suits or proceedings pending, or to the knowledge of the
Partnership, threatened against the Partnership, the General Partner or any of
their property, at law or in equity or before or by any federal or State
commission, regulatory body or administrative agency or other governmental body,
domestic or foreign, in which any adverse decision might have a materially
adverse effect on the business or property of the Partnership or the General
Partner.
(i) The
execution and delivery of this Agreement, the consummation of the transactions
herein contemplated and compliance with the terms of this Agreement by the
Partnership will not conflict with or constitute a default under the Partnership
Agreement, or any indenture, mortgage, deed of trust, lease or other agreement
or instrument to which the Partnership or General Partner is a party, or any
law, order, rule or regulation, writ, injunction or decree of any government,
governmental instrumentality or court, domestic or foreign, having jurisdiction
over the Partnership or the General Partner or any of their property, except to
the extent that the enforceability of the indemnity and/or contribution
provision of the indemnity contained in Section 7 of this Agreement may be
limited under the applicable laws and subject, as to enforcement, to insolvency,
bankruptcy, reorganization or similar laws of general applicability relating to
or affecting creditors’ rights and to general equitable principles.
(j) The
Partnership has full legal right, power and authority to enter into this
Agreement and to perform the transactions contemplated hereby, except to the
extent that the enforceability of the indemnity and/or contribution provisions
contained in Section 7 of this Agreement may be limited under applicable
securities laws.
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(k) At
the time of the delivery of the Interests, the Interests will have been duly
authorized and validly issued, and upon payment therefor, will be fully paid and
will conform to the description thereof contained in the
Prospectus.
(l) There
are no contracts or other documents required to be filed as exhibits to the
Registration Statement that have been not so filed.
10. Notice of
Termination. This Agreement may be terminated by you or by us by giving
written notice by mail, cable or facsimile at least 10 days in advance of your
or our intention to terminate; provided, however, that any rights to receive
Sales Commissions with respect to sales of Interests made prior to such
termination and any rights to indemnification or contribution hereunder, and all
representations, covenants and agreements contained in this Agreement which, by
their terms, expire or will need to be performed after the termination date of
this Agreement (including, but not limited to, the suitability record retention
and disclosure covenants contained in Section 8 above), shall survive such
termination.
11. Governing Law. This
Agreement is being delivered in the State of New York and shall be construed and
enforced in accordance with and governed by the laws of such State without
reference to its choice of law provisions.
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Please
acknowledge acceptance of the terms hereof by signing the two enclosed copies of
this letter and returning the same to us, whereupon this letter and your
acceptance hereof shall constitute a binding agreement between us as of the date
first above written. We will then supply to you for your files one of such
copies signed by the Partnership and the Dealer-Manager.
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Partnership
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By:
ICON GP 15, LLC, its General Partner
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By:
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Name:
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Title:
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Dealer-Manager:
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ICON
Securities Corp.
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By:
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Name:
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Title:
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