EXHIBIT 1.6
ADVISOR'S DISCIPLINED TRUSTS
UNDERWRITER AGREEMENT
Ladies/Gentlemen:
1. The Trust. We understand that you, Fixed Income Securities, Inc., are
entering into this agreement (the "Agreement"), in counterparts, with various
firms, including ours, who may elect to be underwriters for issues of various
series of unit investment trusts for which you will act as sole and exclusive
principal underwriter (the "Trusts"). This Agreement shall apply to any
offering of units of fractional undivided interest (the "Units") in those
Trusts in which we elect to act as an underwriter (underwriters with respect to
each Trust being hereinafter called "Underwriters") after receipt of a notice
from you stating the name and size of the Trust and our participation as an
Underwriter in the proposed offering shall be subject to the provisions of this
Agreement. Each Trust is, or will be, a series of a unit investment trust
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), by appropriate filings with the Securities and Exchange Commission (the
"Commission"). Additionally, the units of each Trust are, or will be,
registered with the Commission under the Securities Act of 1933, as amended (the
"1933 Act"), on Form S-6 or its successor form(s), including a proposed form of
prospectus (the "Preliminary Prospectus").
The registration statement filed by a Trust pursuant to the 1933 Act, as
finally amended and revised at the time it becomes effective, is herein referred
to as the "Registration Statement" and the related prospectus is herein referred
to as the "Final Prospectus," except, that, if the prospectus filed by the Trust
pursuant to Rule 497 under the 1933 Act shall differ from the prospectus on file
at the time the Registration Statement shall become effective, the term "Final
Prospectus" shall refer to the prospectus filed pursuant to Rule 497 from and
after the date on which it shall have been filed.
The following provisions of the Agreement shall apply separately to each
individual offering of Units by a Trust.
We understand that, as of the date upon which we have agreed to underwrite
Units of a Trust, (i) the Commission shall not have issued any order preventing
or restraining the use of the applicable Preliminary Prospectus; (ii) the
applicable Preliminary Prospectus shall conform in all material respects to the
requirements of the 1933 Act and the rules and regulations promulgated
thereunder; (iii) the applicable Preliminary Prospectus, as of its date, shall
not include any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; (iv) when the Registration Statement becomes effective, it and
the Final Prospectus, and any amendments or supplements thereto, will contain
all statements that are required to be stated therein in accordance with the
1933 Act and the rules and regulations promulgated thereunder; and (v) neither
the Registration Statement nor the Final Prospectus, nor any amendment or
supplement thereto, will contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that you make no
representation or warranty as to information contained in, or omitted from, any
Preliminary
Prospectus, the Registration Statement, the Final Prospectus or any such
amendment or supplement, in reliance upon, and in conformity with, written
information furnished to you by, or on behalf of, any Underwriter specifically
for use in the preparation thereof.
2. Designation and Authority of Representative. You are hereby authorized
to act as our representative (the "Representative") in connection with all
matters to which this Agreement relates and to take the action provided herein
to be taken by you or as you may otherwise deem necessary or advisable. We
understand that we have no obligations under this Agreement with respect to any
Trust in which we choose not to participate as an Underwriter.
You will be under no liability to us for any act or omission except for
obligations expressly assumed by you herein and no obligations on your part will
be implied or inferred herefrom. The rights and liabilities of the respective
parties hereto are several and not joint, and nothing herein or hereunder will
constitute them a partnership, association or separate entity.
3. Profit or Loss in Acquisition of Securities. It is understood that the
acquisition of securities (the "Securities") for deposit in the portfolio of a
Trust shall be at your cost and risk. We acknowledge that you will share with
us any net deposit profits in the amounts and to the extent, if any, indicated
in the Final Prospectus. For the purposes of determining the number of Units of
a Trust underwritten we understand that we will be credited for that number of
Units set forth opposite our name in the schedule of Underwriters in the Final
Prospectus.
We agree that you shall have no liability (as Representative or otherwise)
with respect to the issue, form, validity, legality, enforceability, value of,
or title to the Securities, except for the exercise of due care in determining
the genuineness of such Securities and the conformance thereof with the
descriptions and qualifications appearing in the Final Prospectus.
4. Purchase of Units. Promptly after you make a determination to offer
Units of a Trust and you inquire as to whether we desire to participate in such
offering, we will advise you promptly as to the number of Units that we will
purchase (the "Unit Commitment") or of our decision not to participate in such
offering. You may rely on and we hereby commit on the terms and conditions of
this Agreement to purchase and pay for the number of Units of the Trust set
forth in our Unit Commitment. Our Unit Commitment may be increased only by
mutual agreement between us and you at any time prior to the date as of which
the Trust Agreement for the Trust is executed (the "Initial Date of Deposit").
We agree that you, in your sole discretion, reserve the right to decrease our
Unit Commitment at any time on or prior to the Initial Date of Deposit and, if
you so elect to make such a decrease, you will notify us of such election.
Notwithstanding anything to the contrary in this Agreement, the notices
described in this paragraph may be made by telephone.
The price to be paid for such Units shall be the public offering price per
Unit of a Trust (as defined in the Final Prospectus) as determined as of the
close of the New York Stock Exchange on the Initial Date of Deposit or such
other determination on such Initial Date of Deposit as you shall advise us and
which shall be set forth in the Final Prospectus, less the Underwriter
concession per Unit set forth in the Final Prospectus. Further, certain
Underwriters may be eligible for additional compensation as set forth in the
Final Prospectus, which additional
-2-
compensation may be in the form of additional Underwriter concessions or in the
form of direct payments from you. At the Initial Date of Deposit for a Trust,
we will become the owner of the Units of such Trust and be entitled to the
benefits (except for interest, if any, accruing from the Initial Date of Deposit
to the first settlement date for Units) as well as the risks inherent therein.
You are authorized to retain custody of our Units until the Registration
Statement relating thereto has become effective under the 1933 Act and you shall
have received payment from us for such Units. We agree that payment for Units
shall be in Fed Funds, New York clearinghouse or other immediately available
funds and that such funds shall be received by you by the earlier of the end of
the third (3rd) business day following the Initial Date of Deposit for the
applicable Trust or the settlement date established in accordance with
Rule 15c6-1 under the Securities Exchange Act of 1934, as amended (the "1934
Act"). If such payment is not received by you by such date, we shall forfeit
our right to any compensation with respect to such Units, and you reserve the
right, without notice, to cancel the sale, or, at your option, to sell the Units
to another broker-dealer or back to the Trust, in which case you may hold us
responsible for any loss, including loss of profit, suffered by you resulting
from our failure to make payment.
You are authorized to file an amendment to said Registration Statement
describing the Securities and furnishing information based thereon or relating
thereto and any further amendments or supplements to the Registration Statement
or Final Prospectus which you may deem necessary or advisable. We will furnish
to you, upon your request, such information as will be required to ensure that
the Registration Statement and Final Prospectus are current, insofar as they
relate to us, and we will thereafter continue to furnish you with such
information as may be necessary to keep current and correct the information
previously supplied.
We understand that each Trust will also take action with respect to the
offering and sale of Units in accordance with the Blue Sky or securities laws of
certain states in which it is proposed that the Units may be offered and sold.
We agree not to transact orders for Units in states or jurisdictions in which
Units may not be sold or in which we and our personnel are not authorized to
sell Units. You shall have no responsibility, under the laws regulating the
sale of securities in the United States or any foreign jurisdiction, with
respect to the qualification or status of us or our personnel selling Units.
You shall not, in any event, be liable for or responsible for the issue, form,
validity, enforceability and value of such Units or for any matter in connection
therewith. We agree that we will make no offers or sales of Units in any
foreign jurisdiction, except with your express written consent.
5. Public Offering. You agree that you will advise us promptly when the
Registration Statement has become effective, and we agree that when we are
advised that the Units are released for public offering, we will make a public
offering thereof by means of the Final Prospectus under the 1933 Act which
describes the deposit of Securities and related information. The terms and
conditions of the public offering shall be as set forth in the Final Prospectus.
Public advertisement of the offering, if any, shall be made by you on behalf of
the Underwriters on such date as you shall determine. We agree that before we
use any Trust advertising material, which we have created, we will obtain your
prior approval to use such advertising materials.
-3-
6. Public Offering Price. We agree to offer and sell Units of a Trust only
at the public offering price applicable to such Units and in effect at the time
of each transaction. The procedures relating to all orders and the handling of
each order (including the manner of computing the net asset value of Units and
the effective time of orders received from us) are subject to the terms of the
Final Prospectus and your written instructions, if any, as provided to us from
time to time. To the extent that the Final Prospectus contains provisions that
are inconsistent with this Agreement or any other document, the terms of the
Final Prospectus shall be controlling. You reserve the right at any time, and
without notice to us, to suspend the sale of Units or to withdraw or limit the
offering of Units. We agree to date and time stamp all orders for the purchase
or sale of Units received by us, and to promptly forward such orders to you in
time for processing at the public offering price next determined after receipt
of such orders by us, in each case as described in the Final Prospectus. We
represent that we have procedures in place reasonably designed to ensure that
orders received by us are handled in a manner consistent with Section 22c under
the 1940 Act, and any rules, Commission staff positions or interpretations
issued thereunder.
7. Permitted Transactions. It is agreed that part or all of the Units
purchased by us may be sold to dealers or other entities with whom we can
legally grant a concession or agency commission, only at the then-effective
public offering price, less the concession described in the Final Prospectus.
From time to time, prior to the termination of this Agreement, at your
request, we will advise you of the number of our Units which remain unsold and,
at your request, we agree to deliver to you any of such unsold Units to be sold
for our account to retail accounts, or, less the concession or agency commission
then effective, to dealers or others.
If, prior to the termination of this Agreement, or such earlier date as you
may determine and advise us thereof in writing, you shall purchase or contract
to purchase any of our Units or any Units issued in exchange therefor, in the
open market or otherwise, or if any such Units shall be tendered to the Trustee
for redemption because such Units were not effectively placed for investment by
us, we agree to repurchase such Units at a price equal to the total cost of such
purchase, including accrued interest and commissions, if any, and transfer taxes
on redelivery. Regardless of the amount paid on the repurchase of any such
Units, it is agreed that the Units may be resold by us only at the then
effective public offering price.
8. Compliance with Section 14 of the 1940 Act. We hereby acknowledge and
agree that pursuant to Section 14(a) of the 1940 Act and the rules promulgated
thereunder (or pursuant to an order of the Commission granted to you and the
Trusts related thereto) (a) if, within ninety days from the time that a Trust's
Registration Statement has become effective under the 1933 Act, the net worth of
such Trust declines to less than $100,000 or such Trust is terminated, the
trustee of such Trust shall (i) refund, on demand and without deduction, all
sales charges to each investor who purchased Units of such Trust, and
(ii) liquidate the Securities held by such Trust and distribute the proceeds
thereof to the unitholders of such Trust and (b) in the event that redemptions
by you or any Underwriter of Units constituting a part of the Units not
theretofore sold to the public results in a Trust having a net worth of less
than 40 percent of the principal amount of the Securities (or delivery
statements relating to contracts for the purchase of any such
-4-
Securities which, together with cash or an irrevocable letter of credit issued
by a bank in the amount required for their purchase, are held by such Trust for
purchase of the Securities) initially deposited in such Trust: the trustee of
such Trust shall (i) terminate such Trust in the manner provided in the trust
agreement and distribute the assets thereof to the unitholders of such Trust,
and (ii) refund, on demand and without deduction, all sales charges to each
person who purchased Units of such Trust from you or from any Underwriter or
broker-dealer participating in the distribution. In the event that a Trust is
terminated in accordance with the foregoing, we will refund any sales charges to
any purchaser of such Units purchased from us, or purchased from a dealer
participating in the distribution of such Units who purchased such Units from
us. We authorize you to charge our account for all refunds of sales charges in
respect to our Units.
9. Substitution of Underwriters. We authorized you to arrange for the
substitution hereunder of other persons, who may include you and us, for all or
any part of the commitment of any non-defaulting Underwriter with the consent of
such Underwriter, and of any defaulting Underwriter without the consent thereof,
upon such terms and conditions as you may deem advisable, provided that the
number of Units to be purchased by us shall not be increased without our consent
and that such substitution shall not in any way affect the liability of any
defaulting Underwriter to the other Underwriters for damages from such default,
nor relieve any other Underwriter of any obligation under this Agreement. The
expenses chargeable to the account of any defaulting Underwriter and not paid
for by it or by a person substituted for such Underwriter and any additional
losses or expenses arising from such default shall be considered to be expenses
under this Agreement and shall be charged against the accounts of the non-
defaulting Underwriters in proportion to their respective commitments.
10. Default by Other Underwriters. Default by any one or more of the other
Underwriters in respect of their several obligations under this Agreement shall
neither release you nor us from any of our respective obligations hereunder.
11. Delivery of Prospectuses. We will take reasonable steps to provide the
Preliminary Prospectus or Final Prospectus, as applicable, to any person making
written request therefore to us and to make the Preliminary Prospectus or the
Final Prospectus available to each person associated with us expected to solicit
customers' orders for the Units prior to the effective registration date and the
Final Prospectus if he is expected to offer the Units after the effective date.
We understand that you will supply us, upon our reasonable request, with
sufficient copies of such Preliminary Prospectuses and Final Prospectuses to
comply with the foregoing.
12. Licensing. We hereby represent and warrant that as of the commencement
of each offering of Units of a Trust (i) we are a broker-dealer registered with
the Commission; (ii) we are a member in good standing of the Financial Industry
Regulatory Authority, Inc. ("FINRA"); (iii) we are licensed by the appropriate
regulatory agency of each state or other jurisdiction in which we will offer and
sell Units of the Trusts; and (iv) each of our owners, directors, officers,
employees, and agents who will participate or otherwise be involved in the offer
or sale of Units or the performance by us of our duties and activities under
this Agreement is either appropriately licensed or exempt from such licensing
requirements by the appropriate regulatory agency of each state or other
jurisdiction in which we will offer and sell Units of the Trusts.
-5-
We agree that this Agreement is in all respects subject to the Conduct
Rules of FINRA and such Conduct Rules shall control any provision to the
contrary in this Agreement. Without limiting the generality of the foregoing,
we acknowledge that we are solely responsible for all suitability determinations
with respect to offers and sales of Units of the Trusts to our customers and
that you have no responsibility for the manner of our performance of, or for our
acts or omissions in connection with, the duties and activities we perform under
this Agreement.
We agree to be bound by and to comply with all applicable federal and state
laws and all rules and regulations promulgated thereunder generally affecting
the sale or distribution of interests in unit investment trusts.
13. Net Capital. You represent that you, and we represent that we, are in
compliance with the net capital requirements of Rule 15c3-1 promulgated by the
Commission under the 1934 Act and we may, in accordance with and pursuant to
such Rule 15c3-1, agree to purchase the amount of Units to be purchased by you
and us, respectively, under the Agreement.
14. Representations and Warranties. In addition to the representations and
warranties found elsewhere in this Agreement, we represent and warrant that:
(a) We are duly organized and existing and in good standing under the
laws of the state, commonwealth or other jurisdiction in which we are
organized and that we will not offer Units of any Trust for sale in any
state or jurisdiction where such Units may not be legally sold or where we
are not qualified to act as a broker-dealer.
(b) We are empowered, under applicable laws and by our organizational
documents, to enter into this Agreement and perform all activities and
services provided for herein and that there are no impediments, prior or
existing, regulatory, self-regulatory, administrative, civil or criminal
matters affecting our ability to perform under this Agreement.
(c) All requisite actions have been taken to authorize us to enter
into and perform this Agreement.
(d) We are not, at the time of the execution of this Agreement,
subject to any enforcement or other proceeding with respect to our
activities under state or federal securities laws, rules or regulations.
(e) We have, and will maintain during the term of this Agreement,
appropriate broker's blanket bond insurance policies covering any and all
acts of our directors, trustees, officers, partners, employees, and agents
reasonably necessary in light of our obligations under this Agreement, with
coverage limits in amounts standard in the industry, and adequate to
reasonably protect and indemnify you and the Trusts against any Loss (as
defined below) which any party may suffer or incur, directly or indirectly,
as a result of any action or omission by us or our directors, officers,
partners, employees, and agents. The mere purchase and existence of
insurance does not reduce or release us from liability incurred and/or
assumed within the scope of this Agreement. Our failure to maintain
insurance shall not relieve us of liability under this Agreement.
-6-
15. Market Timing. We covenant that we shall cooperate with you to identify
and discourage market timers. If any market timer buying or redeeming Units
comes to our attention, we will immediately notify you. We acknowledge that you
may refuse a request to purchase Units if you believe such purchase request
includes a request by a market timer.
16. Privacy. We represent that we have adopted and implemented procedures
to safeguard customer information and records that are reasonably designed to:
(a) ensure the security and confidentiality of customer records and information;
(b) protect against any anticipated threats or hazards to the security or
integrity of customer records and information; (c) protect against unauthorized
access to, or use of, customer records or information that could result in
substantial harm or inconvenience to any customer; (d) protect against
unauthorized disclosure of non-public personal information to unaffiliated third
parties; and (e) otherwise ensure our compliance with SEC Regulation S-P,
adopted pursuant to the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and any other federal
and state privacy laws which may be enacted in the future.
17. Anti-Money Laundering. (a) We represent and warrant that we are in
compliance and will continue to be in compliance with all applicable anti-money
laundering laws and regulations, including the Bank Secrecy Act, as amended by
the USA PATRIOT Act, and implementing regulations of the Bank Secrecy Act ("BSA
Regulations") and applicable guidance issued by the Commission and the guidance
and rules of the applicable securities exchanges, self regulatory organization
and FINRA (collectively, "Guidance").
(b) We represent and warrant that to the extent that any of our customers
who maintain Trust accounts is a current or former Senior Foreign Political
Figure ("SFPF"), an immediate family member of a SFPF, a person who is widely
known (or is actually known by us) to maintain a close personal relationship
with any such individual, or a corporation, business or other entity that has
been formed by or for the benefit of such individual, we have conducted
appropriate due diligence of such customer consistent with Section 312 of the
USA PATRIOT Act and any applicable BSA Regulations and Guidance.
(c) We represent and warrant that to the extent our customers who maintain
Trust accounts are foreign banks, we have taken reasonable measures and have
obtained certifications and will obtain recertifications that indicate that the
customers are not foreign shell banks, as defined in the BSA Regulations.
(d) We will take all reasonable and practicable steps to ensure that we do
not accept or maintain investments in any Trust, directly or indirectly, from:
(i) A person or entity (A) who is or becomes subject to sanctions
administered by the U.S. Office of Foreign Assets Control ("OFAC"), is
included in any executive order or is on the list of Specially Designated
Nationals and Blocked Persons maintained by OFAC, or (B) whose name appears
on such other lists of prohibited persons and entities as may be mandated
by applicable U.S. law or regulation.
-7-
(ii) A foreign shell bank (i.e., a bank with no physical presence in
any country).
(e) We agree to immediately notify in writing your Anti-Money Laundering
Compliance Officer if we become aware of any suspicious activity or pattern of
activity or any activity that may require further review to determine whether it
is suspicious in connection with a Trust.
18. Effective Date. This Agreement is being executed by us and delivered to
you in duplicate. Upon your confirmation hereof and of agreements in
substantially identical form with each of the other Underwriters, this Agreement
shall constitute a valid and binding contract between us.
19. Termination. This Agreement shall terminate with respect to each Trust
which we have agreed to underwrite upon conclusion of the initial public
offering period of such Trust unless sooner terminated by you. The termination
or suspension of our registration with the Commission; the termination or
suspension of our membership with FINRA; or the termination or suspension of our
license to do business by any state or other jurisdiction shall immediately
cause the termination of this Agreement. Notwithstanding any settlement on the
termination of this Agreement, we agree to pay our share of (i) any amount
payable on account of any claim, demand or liability which may be asserted
against the Underwriters, or any of them, based on the claim that the
Underwriters constitute an association, unincorporated business or other
separate entity and (ii) any expenses incurred by you in defending against any
such claim, demand or liability. We also agree to pay any stamp taxes or other
governmental charges which may be assessed and paid after such settlement on
account of any Units received or sold hereunder for our account.
20. Confidentiality. All books, records, information and data pertaining to
our business or your business that are exchanged or received in connection with
this Agreement shall be kept confidential and shall not be voluntarily disclosed
to any other person, except (i) if such information is already publicly
available; (ii) as may be required solely for the purpose of carrying out our or
your duties and responsibilities, as applicable, under this Agreement; (iii) as
required by order or demand of a court or other governmental or regulatory body
or as otherwise required by law; (iv) as may be required to be disclosed to our
or your attorneys, accountants, regulatory examiners or insurers, as applicable,
for legitimate business purposes; or (v) with our or your express prior written
permission, as applicable.
21. Indemnification. (a) We agree to indemnify, defend and hold harmless
you and the Trusts and your and its directors, officers, employees,
shareholders, agents, affiliates and each person who controls or is controlled
by you, within the meaning of the 1933 Act, from any and all losses, claims,
liabilities, costs, and expenses, including attorney fees (collectively,
"Losses"), that may be assessed against or suffered or incurred by any of them
howsoever they arise, and as they are incurred, which relate in any way to:
(i) our lack of good faith, negligence, or willful misconduct in carrying out
our duties and responsibilities under this Agreement; (ii) our failure to comply
with any applicable law, rule or regulation (including, without limitation, the
securities laws and regulations of the United States or any state or
jurisdiction) in connection with the offer
-8-
or sale by us of Units of the Trusts pursuant to this Agreement, or the
discharge of any of our other duties and responsibilities under this Agreement;
(iii) any alleged tort or breach of contract related to the offer or sale by us
of Units of the Trusts pursuant to this Agreement (except to the extent that
your negligence or failure to follow correct instructions received from us is
the cause of such Loss); (iv) any redemption or exchange pursuant to
instructions received from us or our directors, officers, employees, agents, or
affiliates; (v) incorrect investment instructions received by you from us; or
(vi) the breach by us of any of our representations and warranties specified
herein or our failure to comply with the terms and conditions of this Agreement,
whether or not such action, failure, error, omission, misconduct or breach is
committed by us or our directors, officers, employees, agents, affiliates or any
person who controls or is controlled by us within the meaning of the 1933 Act.
(b) You agree to indemnify, defend and hold harmless us and our directors,
officers, employees, agents, affiliates and each person who controls or is
controlled by us, within the meaning of the 1933 Act, from any and all Losses
that may be assessed against or suffered or incurred by any of them howsoever
they arise, and as they are incurred, which relate in any way to (i) your lack
of good faith, gross negligence, or willful misconduct in carrying out your
duties and responsibilities under this Agreement; (ii) your failure to comply
with any applicable law, rule or regulation in connection with the discharge of
your duties and responsibilities under this Agreement; (iii) any untrue
statement of a material fact, or any omission to state a material fact,
contained in a Prospectus or in any written sales literature or other marketing
materials provided by you to the us, or (iv) the breach by you of any of your
representations and warranties specified herein or your failure to comply with
the terms and conditions of this Agreement, whether or not such action, failure,
error, omission, misconduct or breach is committed by you or your directors,
officers, employees, agents, affiliates or any person who controls or is
controlled by you within the meaning of the 1933 Act.
(c) We agree to notify you promptly of any claim or complaint or any
enforcement action or other proceeding with respect to Units offered hereunder
against us or our directors, officers, employees, agents, affiliates, or any
person who controls us or is controlled by us, within the meaning of the 1933
Act.
22. Notices. Every notice required by this Agreement will be in writing and
deemed given (a) the next business day if sent by a nationally recognized
overnight courier service that provides evidence of receipt, (b) the same
business day if sent by 3:00 p.m. (receiving party's time) by facsimile
transmission and confirmed by a telephone call, or (c) on the third business day
if sent by certified mail, return receipt requested. Unless otherwise notified
in writing, all notices to you shall be given or sent to you at your offices,
located at:
Advisor's Asset Management,
a division of Fixed Income Securities, Inc.
0000 Xxxx 00xx Xxxxxx Xxxxx, Xxxxx 000X
Xxxxxxx, XX 00000
-9-
With a copy to:
Office of the General Counsel
Fixed Income Securities, Inc.
00000 Xxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Unless otherwise notified in writing, all notices to us shall be given or sent
to us at our address set forth on the signature page to this Agreement.
23. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the state of Colorado, without reference to the
choice-of-law principles thereof.
24. Investigations and Proceedings. We agree and you agree to cooperate
fully in any securities regulatory investigation or proceeding or judicial
proceeding with respect to our respective activities under this Agreement and
promptly to notify the each other of any such investigation or proceeding.
25. Arbitration. If a dispute arises between the parties hereto with
respect to this Agreement which the parties are unable to resolve themselves, it
shall be settled by arbitration in accordance with the then existing FINRA Code
of Arbitration Procedures (the "FINRA Code"). The parties agree that to the
extent permitted by the FINRA Code the arbitrator(s) shall be selected from the
securities industry.
26. Survival. The representations, warranties, covenants and agreements of
the undersigned contained in this Agreement, including, without limitation, the
indemnity agreement contained in Section 21 hereof, shall survive any
termination of this Agreement.
27. Captions. All captions used in this Agreement are for convenience only
and are not to be used in construing or interpreting any aspect hereof.
28. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law.
If, however, any provision of this Agreement is held, under applicable law, to
be invalid, illegal or unenforceable in any respect, such provision shall be
ineffective only to the extent of such invalidity, and the validity, legality
and enforceability of the remaining provisions of this Agreement shall not be
affected or impaired in any way.
29. Non-Exclusivity. Each of the parties acknowledges and agrees that this
Agreement and the arrangements described herein are intended to be non-exclusive
and that each of the parties is free to enter into similar agreements and
arrangements with other entities.
30. Entire Agreement. This Agreement contains our entire understanding with
you with respect to the subject matter contained herein and supersedes all
previous agreements and/or understandings between us.
-10-
If the foregoing is in accordance with your understanding, please sign and
return the enclosed copy of this letter whereupon it shall become a binding
agreement between us.
Very truly yours,
----------------------------------------
(Name of Underwriting Firm)
Address:
----------------------------------------
----------------------------------------
----------------------------------------
By:
-------------------------------------
Printed Name:
------------------------
Title:
-------------------------------
Date:
--------------------------------
Agreed and accepted:
FIXED INCOME SECURITIES, INC.
By:
-------------------------------------
Printed Name:
------------------------
Title:
-------------------------------
Date:
--------------------------------
-11-
