UNDERWRITING AGREEMENT by and among Bond Trust Products Trust A, Bond Trust Products LLC and the Underwriter named herein May 31, 2005
by and
among
Bond
Trust Products Trust A,
and
the
Underwriter
named herein
May 31,
2005
May 31,
2005
Incapital
LLC
Xxx Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
The
issuer, Bond Trust Products Trust A, a Delaware statutory trust (the “Trust”)
formed pursuant to a trust agreement (the “Trust Agreement), dated May 31, 2005,
by and among Bond Trust Products LLC, as depositor (the “Depositor”), The Bank
of New York Trust Company, N.A., as trustee (the “Trustee”), The Bank of New
York (Delaware), as Delaware trustee and on behalf of the Trust, and Incapital
Holdings LLC, as administrative agent (the “Administrative Agent”), proposes to
issue and sell to you, as underwriter (the “Underwriter”) up to $5,500,000
aggregate amount of the Trust’s pass-through certificates (the “Certificates”).
The Certificates will be issued under the Trust Agreement. The Certificates are
described more fully in the Prospectus Supplement referred to
below.
I.
The
Depositor has filed with the Securities and Exchange Commission (the “SEC”) a
registration statement (File No. 333-111885) relating to the sale of
certificates of one or more trusts formed by it, including the Trust, and the
offering of the Certificates thereof, from time to time, in accordance with Rule
415 under the Securities Act of 1933, as amended (the “1933 Act”). Such
registration statement and the prospectus forming a part thereof, including all
documents incorporated therein by reference, as from time to time amended or
supplemented, including any Prospectus Supplement, are referred to herein as the
“Registration Statement” and the “Prospectus,” respectively. The Registration
Statement has been declared effective by the SEC, and the Trust Agreement has
been qualified under the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”).
II.
The
Depositor and the Trust hereby represent and warrant to the Underwriter jointly
and severally that:
(a) No stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) As of the
date hereof and as of any time that the Registration Statement or the Prospectus
shall be amended or supplemented or there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K relating exclusively to the issuance of Certificates under the
Registration Statement or furnished solely for the purpose of disclosure under
Item 7.01 thereof) (each of the times referenced above being referred to herein
as a “Representation Date”) as follows:
(i) The
Depositor meets the requirements for use of Form S-3 under the 1933 Act and has
filed with the SEC the Registration Statement, which has been declared
effective. The Registration Statement meets the requirements of Rule 415 under
the 1933 Act and complies in all other material respects with said
Rule.
(ii) (a) The
Registration Statement, as amended or supplemented, the Prospectus and the Trust
Agreement will comply in all material respects with the applicable requirements
of the 1933 Act, the Trust Indenture Act and the 1934 Act and the respective
rules and regulations thereunder, (b) the Registration Statement, as amended as
of any such time, will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and (c) the Prospectus, as
amended or supplemented as of any such time, will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that
neither the Trust nor the Depositor makes any representations or warranties as
to (x) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification of the Trustee (Form T-1) under the
Trust Indenture Act or (y) the information contained in or omitted from the
Registration Statement or the Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished in writing
to the Depositor by or on behalf of the Underwriter specifically for inclusion
in the Registration Statement and the Prospectus.
(iii) The
documents incorporated by reference or deemed to be incorporated by reference in
the Registration Statement and the Prospectus, at the time they were or
hereafter are filed with the SEC, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and regulations of
the SEC thereunder and, when read together with the other information in the
Prospectus, at the date hereof, at the date of the Prospectus and at each
Representation Date, did not and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
2
(c) The
Certificates have been approved for listing on the American Stock Exchange,
subject to notice of issuance.
(d) The
conditions for use of Form S-3 to register the offering of the Certificates
under the 1933 Act, as set forth in the General Instructions to such form, have
been satisfied.
(e) The
Certificates have been given an “investment grade” rating by a “nationally
recognized statistical rating organization” as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act.
III.
The
obligations of the Underwriter hereunder shall be subject to the accuracy in all
material respects of the representations and warranties on the part of the Trust
and the Depositor contained herein as of the date hereof, to the accuracy in all
material respects of the statements of the Trust and the Depositor made in any
certificates delivered in connection with the transactions contemplated hereby,
to the performance in all material respects by the Trust and the Depositor of
their respective obligations hereunder and to the satisfaction of the following
additional conditions.
(a) On the
date hereof, the Underwriter shall have received the following legal opinions,
dated as of the date hereof and in form and substance satisfactory to the
Underwriter:
(1) The
opinion of Xxxxxxxx & Xxxxxxxx LLP, counsel for the Trust and the Depositor,
to the effect that:
(i) The
Depositor is a duly formed limited liability company, validly existing and in
good standing under the laws of the State of Delaware and the Depositor has the
requisite power and authority to conduct its business as described in the
Prospectus;
(ii) The
Depositor is qualified or licensed to do business as a foreign limited liability
company, as applicable, in any jurisdiction in which such counsel has knowledge
that the Depositor is required to be so qualified or licensed;
(iii) This
Agreement has been duly authorized, executed and delivered by each of the Trust
and the Depositor and constitutes a legal, valid and binding obligation of the
Trust and the Depositor;
(iv) The Trust
Agreement has been duly qualified under the Trust Indenture Act;
(v) The
Registration Statement has become effective under the 1933 Act and, to such
counsel’s knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or threatened; and the Registration Statement (other than the
financial statements and other financial and statistical information contained
therein or incorporated by reference therein, as to which such counsel need
express no opinion) as of the effective date thereof, complied as to form in all
material respects with the applicable requirements of the 1933 Act, the
Securities Exchange Act of 1934, as amended (the “1934 Act”), the Trust
Indenture Act, and the respective rules and regulations of the SEC
thereunder;
3
(vi) The form
of Certificate attached to the Secretary’s Certificate delivered by the
Depositor to the Underwriter conforms in all material respects to the
descriptions thereof contained in the Prospectus;
(vii) The Trust
Agreement conforms in all material respects to the description thereof contained
in the Prospectus;
(viii) Such
counsel is without knowledge that (1) there is any pending or threatened action,
suit or proceeding before or by any court or governmental agency, authority or
body or any arbitrator involving either the Trust or the Depositor of a
character required to be disclosed in the Registration Statement or Prospectus
which is omitted or not adequately disclosed therein, or (2) any franchise,
contract or other document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit to the
Registration Statement, is not so described or filed as required;
(ix) Neither
the issuance and sale of the Certificates, the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will to
such counsel’s knowledge conflict with, result in a breach of, or constitute a
default under (1) the terms of any material agreement or instrument known to
such counsel and to which the Depositor is a party or bound, or (2) any order,
law or regulation known to such counsel to be applicable to the Depositor of any
court, regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Depositor; and
(x) No
consent, approval, authorization or order of any court or governmental agency or
body is required on behalf of the Depositor for the consummation of the
transactions contemplated herein, except such as have been obtained under the
1933 Act and such as may be required under foreign or state securities laws in
connection with the purchase and distribution of the Certificates.
In
rendering such opinion, counsel may rely as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Depositor and
public officials.
In
rendering such opinion, but without opining in connection therewith, such
counsel shall state that, although such counsel expresses no view as to portions
of the Registration Statement consisting of financial statements and other
financial, accounting and statistical information and it has not independently
verified, is not passing upon and assumes no responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus or any amendment or supplement thereto (other than as
stated in (vi) and (vii) above), such counsel has no reason to believe that such
remaining portions of the Registration Statement or any amendment thereto, at
the time it became effective, and as of the date of such opinion contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary in order to make
the statements therein not misleading or that, subject to the foregoing with
respect to financial statements and other financial, accounting and statistical
information, the Prospectus, as amended or supplemented, as of its date and as
of the date of such opinion contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
4
(2) The
opinion of Xxxxxxxx, Xxxxxx and Finger, LLP, special Delaware counsel to the
Depositor and the Trust, to the effect that:
(i) The Trust
has been duly created and is validly existing in good standing as a trust under
the laws of the State of Delaware;
(ii) Under the
laws of the State of Delaware and under the Trust Agreement, the Trust has the
trust power and authority (a) to own its properties and conduct its business,
(b) to execute and deliver the Agreements (as defined in such opinion) to which
it is a party, and (c) to issue and perform its obligations under the
Certificates, all as described in the Trust Agreement;
(iii) The Trust
Agreement constitutes a valid and binding obligation of the Depositor and the
Trustees, enforceable against the Depositor in accordance with its
terms;
(iv) Under the
laws of the State of Delaware and under the Trust Agreement, the execution and
delivery by the Trust of the Agreements to which it is a party, and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all necessary action on the part of the Trust;
(v) The
Certificates will represent valid, fully paid and non-assessable undivided
beneficial interests in the assets of the Trust;
(vi) Under the
laws of the State of Delaware and the Trust Agreement, the issuance of the
Certificates is not subject to any preemptive rights;
(vii) Neither
the issuance and sale of the Certificates, the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will to
such counsel’s knowledge conflict with, result in a breach of, or constitute a
default under the Trust Agreement; and
(viii) No
authorization, approval or other action by, and no notice to or filing with, any
government authority or regulatory body of the State of Delaware is required for
the issuance and sale of the Certificates or the consummation of the
transactions contemplated hereunder or under the Trust Agreement.
5
In
rendering such opinion, counsel may rely as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Depositor and
public officials.
(3) The
opinion of Xxxxxx X. Xxxxx, Esq., general counsel to the Underwriter, covering
the matters referred to in subparagraph (1) under the subheadings (iv) through
(vii), inclusive, above.
In
rendering such opinion, counsel may rely as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Trust, the
Depositor and public officials.
(b) On the
date hereof, the Underwriter, the Depositor and the Trust shall have received a
certificate from The Bank of New York (Delaware) (“Delaware Trustee”), dated the
date hereof, to the effect that: (i) it is a Delaware banking corporation with
trust powers, duly organized, validly existing and in good standing under the
laws of the State of Delaware with all necessary power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of the
Trust Agreement forming the Trust and to act as trustee thereunder and has duly
accepted such duties; (ii) the Trust Agreement has been duly executed and
delivered in the name of and on its behalf as the Delaware Trustee; (iii) at the
date hereof, the Trust Agreement is in full force and effect with respect to the
Delaware Trustee; and (iv) each person who, on behalf of the Delaware Trustee,
executed and delivered the Trust Agreement was at the date thereof duly elected,
appointed or authorized, qualified and acting as an officer or authorized
signatory of the Delaware Trustee and was duly authorized and empowered to
perform such acts at the respective times of such acts, and the signatures of
such persons appearing on such documents are their genuine
signatures.
(c) On the
date hereof, the Underwriter shall have received a certificate of the Chief
Executive Officer and the Chief Financial Officer of the Depositor, dated as of
the date hereof, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus and this Agreement
and that (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has been no material adverse
change or development involving a prospective material adverse change in the
condition of the Trust or the Depositor, whether or not arising from
transactions in the ordinary course of business, except as set forth or
contemplated in the Prospectus, (ii) the representations and warranties of the
Trust and the Depositor contained in this Agreement are true and correct with
the same force and effect as though expressly made at and as of the date of such
certificate, (iii) neither the Trust nor the Depositor has failed to perform or
comply with all the agreements and has satisfied all the conditions on its part
to be performed or satisfied hereunder at or prior to the date of such
certificate, (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and any proceedings for that purpose have been
instituted or threatened by the SEC and (v) no litigation or proceeding is
pending to restrain or enjoin the issuance or delivery of the Certificates, or
which in any way affects the validity of the Certificates.
6
(d) On the
date hereof counsel to the Underwriter shall have been furnished with such
documents and opinions as such counsel may reasonably require for the purpose of
enabling such counsel to pass upon the issuance and sale of Certificates as
herein contemplated, or in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any of the
conditions, contained herein; and all proceedings taken by the Trust or the
Depositor in connection with the issuance and sale of Certificates as herein
contemplated shall be satisfactory in form and substance to counsel to the
Underwriter.
(e) There
shall not have come to the attention of the Underwriter any facts that would
cause it to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of the Certificates, included an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time of such
delivery, not misleading.
IV.
In
further consideration of your agreements herein contained, the Trust and the
Depositor, as applicable, hereby covenant, jointly and severally, as
follows:
(a) The
Depositor will notify the Underwriter immediately of (i) the effectiveness of
any amendment to the Registration Statement, (ii) the filing of any supplement
to the Prospectus, (iii) the receipt of any comments from the SEC with respect
to the Registration Statement or the Prospectus (other than with respect to a
document filed with the SEC pursuant to the 1934 Act which will be incorporated
by reference in the Registration Statement and the Prospectus), (iv) any request
by the SEC for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information relating thereto
(other than such a request with respect to a document filed with the SEC
pursuant to the 1934 Act which will be incorporated by reference in the
Registration Statement and the Prospectus), and (v) the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Trust and the Depositor will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) The
Depositor will give the Underwriter notice of its intention to file or prepare
any additional registration statement with respect to the registration of
additional Certificates or any amendment to the Registration Statement or any
amendment or supplement to the Prospectus (other than an amendment or supplement
effected by the filing of a document with the SEC pursuant to the 0000 Xxx) and,
upon request, will furnish the Underwriter with copies of any such registration
statement or amendment or supplement proposed to be filed or prepared a
reasonable time in advance of such proposed filing or preparation, as the case
may be, and will not file any such registration statement or amendment or
supplement in a form as to which the Underwriter or counsel to the Underwriter
reasonably object.
(c) The
Depositor will deliver to the Underwriter without charge, as many signed and
conformed copies of (i) the Trust Agreement, (ii) the Registration Statement (as
originally filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated by
reference in the Prospectus) and (iii) a certified copy of the authorization of
the issuance and sale of the Certificates as the Underwriter may reasonably
request. The Depositor will furnish to the Underwriter as many copies of the
Prospectus (as amended or supplemented) as the Underwriter shall reasonably
request so long as the Underwriter is required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the Certificates
under the 1933 Act. Upon request, the Depositor will furnish to the Underwriter
a paper copy of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q,
Current Report on Form 8-K or any reports on any successor forms, if any, filed
by the Depositor, on behalf of the Trust, with the SEC pursuant to the 1934 Act
as soon as practicable after the filing thereof.
7
(d) Except as
otherwise provided in subsection (g) of this Section, if at any time during the
term of this Agreement any event shall occur or condition exist as a result of
which it is necessary, in the reasonable opinion of counsel to the Underwriter
or counsel for the Depositor, to further amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein not misleading in light of the circumstances existing at the
time the Prospectus is delivered to a purchaser, or if it shall be necessary, in
the reasonable opinion of either counsel to the Underwriter or counsel for the
Depositor, to amend or supplement the Registration Statement or the Prospectus
in order to comply with the requirements of the 1933 Act or the rules and
regulations promulgated thereunder, immediate notice shall be given, and
confirmed in writing, to the Underwriter to cease the solicitation of offers to
purchase the Certificates, and the Depositor will promptly prepare and file with
the SEC such amendment or supplement, whether by filing documents pursuant to
the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements.
(e) The Trust
and the Depositor each will endeavor, in cooperation with the Underwriter, to
qualify the Certificates for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Underwriter may designate and will maintain such qualifications in effect for as
long as may be required for the distribution of the Certificates; provided,
however, that
neither the Trust nor the Depositor shall be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Depositor will file, on behalf
of itself and on behalf of the Trust, such statements and reports as may be
required by the laws of each jurisdiction in which the Certificates have been
qualified as above provided. The Depositor will promptly advise the Underwriter
of the receipt by it or by the Trust of any notification with respect to the
suspension of the qualification of the Certificates for sale in any such state
or jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(f) The
Depositor, during the period when the Prospectus is required to be delivered
under the 1933 Act, will file promptly all documents required to be filed with
the SEC pursuant to the 0000 Xxx.
(g) The
Depositor shall not be required to comply with the provisions of subsections (d)
of this Section or the provisions of Sections VII(a) and (b) during any period
from the time the Underwriter have suspended solicitation of purchases of the
Certificates in their capacity as agent pursuant to a request from the Trust or
the Depositor, as applicable, to the time the Trust or the Depositor, as
applicable, shall determine that solicitation of purchases of the Certificates
should be resumed.
8
V.
(a) The
Underwriter will purchase the Certificates from the Depositor at the purchase
price equal to 99.150% of the public offering price and will resell the
Certificates to the public from time to time in negotiated transactions or
otherwise at prevailing market prices. For the purpose of such resales the
Underwriter will use the Prospectus as then supplemented which has been most
recently distributed to the Underwriter by the Depositor.
Unless
otherwise instructed by the Depositor, the Underwriter is authorized to resell
the Certificates only in denominations of $1,000 or more (in multiples of
$1,000). The Underwriter is not authorized to appoint subagents or to engage the
services of any other broker or dealer in connection with the resale of the
Certificates except under the terms of the Master Selected Dealer Agreement
attached hereto as Exhibit A.
(b) The
Trust, the Depositor and the Underwriter each acknowledges and agrees, and each
Selected Dealer will be required to acknowledge and agree, that the Certificates
are being offered for resale in the United States only.
VI.
(a) Each
resale of Certificates shall be made in accordance with the terms of this
Agreement. The offering of Certificates by the Trust hereunder shall be deemed
to have been made on the basis of the representations, warranties and agreements
of the Trust and the Depositor, as applicable, herein contained and shall be
subject to the terms and conditions herein set forth. Schedule I may specify,
among other things, the principal amount of Certificates to be purchased, the
underlying debt securities held by the Trust, the interest rate or formula and
maturity date or dates of such underlying debt securities, the distribution
dates, if any, the net proceeds to the Trust, the initial public offering price
at which the Certificates are proposed to be offered, and the time and place of
delivery of and payment for such Certificates (the “Closing Date”), whether the
underlying debt securities provide for a Survivor’s Option, and any other
relevant terms. In connection with the resale of the Certificates purchased,
without the consent of the Depositor, the Underwriter is not authorized to
appoint subagents or to engage the service of any other broker or dealer, nor
may the Underwriter reallow any portion of the Concession.
VII.
(a) The
Depositor and the Trust jointly and severally agree to indemnify and hold
harmless the Underwriter and each person who controls the Underwriter within the
meaning of either the 1933 Act or the 1934 Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the 1933 Act, the 1934 Act or other Federal or state
statutory law or regulation, at common law 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 a material
fact contained in the Registration Statement as originally filed or in any
amendment thereof, or arise out of or are based upon 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, or arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus, or any amendment or supplement thereof, or arise
out of or are based upon any omission or 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, and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that
(i) neither the Trust nor the Depositor will be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to either the Trust or the Depositor by or on behalf of
the Underwriter specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereof, or arises out of or is based
upon statements in or omissions from that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification of the
Trustee (Form T-1) under the Trust Indenture Act and (ii) such indemnity with
respect to the Prospectus shall not inure to the benefit of the Underwriter (or
any person controlling the Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Certificates which are the
subject thereof if the Underwriter failed to deliver a copy of the Prospectus as
amended or supplemented to such person in connection with the sale of such
Certificates excluding documents incorporated therein by reference at or prior
to the written confirmation of the sale of such Certificates to such person in
any case where such delivery is required by the 1933 Act and the untrue
statement or omission of a material fact contained in the Prospectus was
corrected in the Prospectus as amended or supplemented. This indemnity agreement
will be in addition to any liability which the Trust or the Depositor may
otherwise severally have.
9
(b) The
Underwriter agrees to indemnify and hold harmless the Trust and the Depositor,
each of the members and officers of the Depositor who signs the Registration
Statement and each person who controls either the Trust or the Depositor within
the meaning of either the 1933 Act or the 1934 Act, to the same extent as the
foregoing indemnity from the Trust or the Depositor to the Underwriter, but only
with reference to written information relating to the Underwriter furnished to
the Depositor by or on behalf of the Underwriter specifically for inclusion in
the Registration Statement or Prospectus or any amendment or supplement thereof.
This indemnity agreement will be in addition to any liability which the
Underwriter may otherwise have. The Trust and the Depositor each acknowledge
that (i) the name of the Underwriter and the statements required by Item 508 of
Regulation S-K set forth in the language on the cover page or under the heading
“Plan of Distribution,” (ii) the sentences relating to concessions and
reallowances, and (iii) the paragraph related to stabilization and syndicate
covering transactions in the Prospectus constitute the only information
furnished in writing by or on behalf of the Underwriter for inclusion in the
Registration Statement or Prospectus or any amendment or supplement
thereof.
(c) Promptly
after receipt by an indemnified party under this Section VII of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section VIII,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party except to the extent, if
any, that such failure materially prejudices the indemnifying party. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and, to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided,
however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section VII for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel), approved by the Underwriter in
the case of paragraph (a), representing the indemnified parties under paragraph
(a) who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
10
(d) To
provide for just and equitable contribution in circumstances in which the
indemnification provided for in paragraph (a) of this Section VII is due in
accordance with its terms but is for any reason held by a court to be
unavailable from the Trust or the Depositor on the grounds of policy or
otherwise, the Trust, the Depositor and the Underwriter shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
to which the Trust, the Depositor and one or more of the Underwriter may be
subject in such proportion so that the Underwriter is responsible
for that
portion represented by the percentage that the total commissions and
underwriting discounts received by the Underwriter bears to the total sales
price from the sale of Certificates sold to or through the Underwriter to the
date of such liability, and the Trust or the Depositor is responsible for the
balance. However, if the
allocation provided by the foregoing sentence is not permitted by applicable
law, the
Trust, the Depositor and the Underwriter shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to which
the Trust, the Depositor and the Underwriter may be subject in such proportion
to reflect the
relative fault of the Trust or the Depositor on the one hand and the
Underwriter on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations.
The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Trust, the Depositor or the Underwriter, the
parties’ relative intents, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. The Trust, the Depositor and
the Underwriter agree
that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to above in this paragraph (d). Notwithstanding
anything to the contrary contained herein, (i) in no case shall the Underwriter
be responsible for any amount in excess of the commissions and underwriting
discounts received by the Underwriter in connection with the Certificates from
which such losses, liabilities, claims, damages and expenses arise and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section
VII, each person who controls the Underwriter within the meaning of the 1933 Act
shall have the same rights to contribution as the Underwriter, and each person
who controls the Trust or the Depositor within the meaning of either the 1933
Act or the 1934 Act, each officer of the Depositor who shall have signed the
Registration Statement and each member of the Depositor shall have the same
rights to contribution as the Trust or the Depositor, subject in each case to
the provisions of this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
11
VIII.
Upon
receipt of instructions from the Depositor, the Underwriter shall suspend or
terminate the participation of any Selected Dealer under the Master Selected
Dealer Agreement attached hereto as Exhibit A. Such action may be taken by
giving prompt written notice of suspension to the Underwriter and by giving not
less than 5 days’ written notice of termination to the affected party and the
Underwriter.
The
Underwriter may terminate this Agreement immediately upon notice to the Trust
and the Depositor at any time prior to the Closing Date, if (i) there has been,
since the date of such agreement, any material adverse change or any development
involving a prospective material adverse change in the condition (financial or
other), earnings, business or properties of the Trust the effect of which is
such as to make it, in the judgment of the Underwriter, impracticable to market
the Certificates or enforce contracts for the sale of the Certificates, (ii) if
trading generally on either the American Stock Exchange or the New York Stock
Exchange shall have been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been required,
by either of said exchanges or by order of the SEC or any other governmental
authority, (iii) a material disruption in the commercial banking or securities
settlement or clearance services in the United States has occurred or a banking
moratorium shall have been declared by Federal or New York State authorities, or
(iv) there shall have occurred any outbreak or material escalation of
hostilities or other calamity or crisis (in the United States or elsewhere) the
effect of which on the financial markets of the United States the effect of
which is such as to make it, in the judgment of the Underwriter, impracticable
to market the Certificates or enforce contracts for the sale of the
Certificates.
If this
Agreement is terminated, Section IV(c), Section VII and Section XI hereof shall
survive and shall remain in effect.
12
IX.
Except as
otherwise specifically provided herein, all statements, requests, notices and
advices hereunder shall be in writing, or by telephone if promptly confirmed in
writing, and shall be sufficient in all respects if delivered or sent by telex,
facsimile transmission (confirmed in writing) or registered mail to the parties
at their respective address specified below. All such notices shall be effective
on receipt.
If to the
Trust:
x/x Xxx
Xxxx xx Xxx Xxxx Trust
Company,
N.A.
00000
Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attention:
Corporate Trust Administration
Facsimile:
(000) 000-0000
With a
copy to:
Incapital
Holdings, LLC
Xxx Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000-0000
Attention:
Xxxxxx X. Xxxxx, Esq. and Xxxxxx X. Xxxxxxx
Facsimile:
(000) 000-0000
If to the
Depositor:
c/o
Administrative Agent
Incapital
Holdings LLC
Xxx Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000-0000
Attention:
Xxxxxx X. Xxxxxxx
Facsimile:
(000) 000-0000
With a
copy to:
Xxxxxxxx
& Xxxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxx Xxxxxx, Esq.
Facsimile:
(000) 000-0000
13
If to the
Underwriter:
Incapital,
LLC
Xxx Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxx, Esq.
Facsimile:
(000) 000-0000
or at
such other address as such party may designate from time to time by notice duly
given in accordance with the terms of this Section.
X.
This
Agreement shall be binding upon the Underwriter, the Trust and the Depositor,
and inure solely to the benefit of the Underwriter, the Trust and the Depositor
and any other person expressly entitled to indemnification hereunder and the
respective personal representatives, successors and assigns of each, and no
other person shall acquire or have any rights under or by virtue of this
Agreement.
XI.
This
Agreement shall be governed by and construed in accordance with the substantive
laws of the State of New York. Each party to this Agreement irrevocably agrees
that any legal action or proceeding against it arising out of or in connection
with this Agreement or for recognition or enforcement of any judgment rendered
against it in connection with this Agreement may be brought in any Federal or
New York State court sitting in the County of New York, New York, and, by
execution and delivery of this Agreement, such party hereby irrevocably accepts
and submits to the jurisdiction of each of the aforesaid courts in person,
generally and unconditionally with respect to any such action or proceeding for
itself and in respect of its property, assets and revenues. Each party hereby
also irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of venue of any such action or
proceeding brought in any such court and any claim that any such action or
proceeding has been brought in an inconvenient forum.
XII.
If this
Agreement is executed by or on behalf of any party, such person hereby states
that at the time of the execution of this Agreement he has no notice of
revocation of the power of attorney by which he has executed this Agreement as
such attorney.
14
The Trust
will pay the following expenses incident to the performance of its obligations
under this Agreement, including: (i) a portion of the fees related to the
preparation and filing of the Registration Statement as originally filed; (ii)
the preparation, filing and reproduction of this Agreement; (iii) the
preparation, issuance and delivery of the Certificates to the Underwriter,
including capital duties, stamp duties and transfer taxes, if any, payable upon
issuance of any of the Certificates, the sale of the Certificates and the fees
and expenses of any transfer agent for the Certificates; (iv) the fees and
expenses of counsel to any such transfer agent or trustee; (v) the fees and
disbursements of the Trust’s counsel and the Depositor’s accountants and
counsel; (vi) the reasonable fees and disbursements of counsel to the
Underwriter incurred from time to time in connection with the transactions
contemplated hereby; (vii) the qualification of the Certificates under state
securities laws, including filing fees and the reasonable fees and disbursements
of counsel for the Depositor in connection therewith and in connection with the
preparation of any Blue Sky survey; (viii) the printing and delivery to the
Underwriter of copies of the Registration Statement and of each amendment
thereto, of the Prospectus and any amendments or supplements thereto; (ix) the
printing and delivery to the Underwriter of copies of any Blue Sky survey; (x)
the fees of the National Association of Securities Dealers, Inc.; (xi) the
preparation, printing, reproduction and delivery to the Underwriter of copies of
the Indentures and all supplements and amendments thereto; (xii) any fees
charged by rating agencies for the rating of the Certificates; (xii) the fees
and expenses of any depository and any nominee thereof in connection with the
Certificates; and (xiii) if applicable, the fees of the American Stock
Exchange.
This
Agreement may be executed by each of the parties hereto in any number of
counterparts, and by each of the parties hereto on separate counterparts, each
of which counterparts, when so executed and delivered, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument. Facsimile signatures shall be deemed original
signatures.
15
If the
foregoing is in accordance with your understanding, please sign and return to us
a counterpart hereof, and upon acceptance hereof by you, this letter and such
acceptance hereof shall constitute a binding agreement between the Trust and
you.
Very
truly yours,
as
Depositor
By:
/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx
X. Xxxxxxx
Title:
Managing Member
BOND
TRUST PRODUCTS TRUST A,
as
Issuer
By: THE
BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee
By:
/s/ Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Vice President
By: THE
BANK OF NEW YORK (DELAWARE), as Delaware Trustee
By:
/s/ Xxxxxxxx X. Xxxxx
Name:
Xxxxxxxx X. Xxxxx
Title:
Vice President
Confirmed
and accepted
as of the
date first above written:
INCAPITAL
LLC
By: /s/
Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Secretary
16
SCHEDULE
I
Bond
Trust Products Trust A
c/o
Administrative Agent
Incapital
Holdings LLC
Xxx Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000-0000
Facsimile:
(000) 000-0000
Aggregate
principal amount of Certificates:
$5,500,000
The terms
of such Certificates shall be as follows:
CUSIP
Number: 00000XXX0
Price to
Public: $5,500,000
Underwriter’s
discount: $46,750
Net
Proceeds to Issuer: $5,453,250
Symbol on
Amex: XTP.a
Underlying
debt securities: CUSIPS: 00000XXX0, 00000XXX0, 0000X0XX0, 00000XXX0,
00000XXX0,
00000XXX0, 00000XXX0, 0000X0XX0, 63743FCAZ,
00000XXX0, 00000XXX0
Regular
Distribution Dates: June 15 and December 15
Survivor’s
Option: Yes
Closing
Date: June 3, 2005
[Signature
Page Follows]
The
undersigned agrees to purchase the aggregate principal amount of the
Certificates listed above pursuant to the terms set forth in this Schedule
I:
| Incapital LLC | ||
| |
|
|
| By: | ||
|
Name: | ||
| Title: | ||
ACCEPTED:
BOND
TRUST PRODUCTS TRUST A
The Bank
of New York Trust Company, N.A.,
as
trustee
By:______________________________
Name:
Title:
The Bank
of New York (Delaware),
as
Delaware trustee
By:______________________________
Name:
Title:
EXHIBIT
A
Master
Selected Dealer Agreement
«FirstName»
«Company»
«Address1»
«Address2»
«City»,
«State»
«Postal»
Dear
Selected Dealer:
In
connection with public offerings of securities after the date hereof for which
we are acting as manager of an underwriting syndicate or are otherwise
responsible for the distribution of securities to the public by means of an
offering of securities for sale to selected dealers, you may be offered the
right as such a selected dealer to purchase as principal a portion of such
securities. This will confirm our mutual agreement as to the general terms and
conditions applicable to your participation in any such selected dealer group
organized by us as follows.
1. Applicability
of this Agreement. The
terms and conditions of this Agreement shall be applicable to any public
offering of securities (“Securities”), pursuant to a registration statement
filed under the Securities Act of 1933, as amended (the “Securities Act”), or
exempt from registration thereunder (other than a public offering of Securities
effected wholly outside the United States of America), wherein Incapital LLC
clearing through Pershing, LLC (the “Account”) (acting for its own Account or
for the account of any underwriting or similar group or syndicate) is
responsible for managing or otherwise implementing the sale of the Securities to
selected dealers (“Selected Dealers”) and has expressly informed you that such
terms and conditions shall be applicable. Any such offering of Securities to you
as a Selected Dealer is hereinafter called an “Offering”. In the case of any
Offering where we are acting for the account of any underwriting or similar
group or syndicate (“Underwriters”), the terms and conditions of this Agreement
shall be for the benefit of, and binding upon, such Underwriters, including, in
the case of any Offering where we are acting with others as representatives of
Underwriters, such other representatives.
2. Conditions
of Offering; Acceptance and Purchases. Any
Offering: (i) will be subject to delivery of the Securities and their acceptance
by us and any other Underwriters; (ii) may be subject to the approval of all
legal matters by counsel and the satisfaction of other conditions, and (iii) may
be made on the basis of reservation of Securities or an allotment against
subscription. We will advise you by electronic mail, facsimile or other form of
written communication (“Written Communication”, which term, in the case of any
Offering described in Section 3(a) or 3(b) hereof, may include a prospectus or
offering circular) of the particular method and supplementary terms and
conditions (including, without limitation, the information as to prices and
offering date referred to in Section 3(c) hereof) of any Offering in which you
are invited to participate. To the extent such supplementary terms and
conditions are inconsistent with any provision herein, such terms and conditions
shall supersede any such provision. Unless otherwise indicated in any such
Written Communication, acceptances and other communications by you with respect
to an Offering should be sent to Incapital LLC, Xxx Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000. We reserve the right to reject any acceptance in
whole or in part. Unless notified otherwise by us, Securities purchased by you
shall be paid for on such date as we shall determine, on one day’s prior notice
to you, by certified or official bank check, in an amount equal to the Public
Offering Prices (as hereinafter defined) or, if we shall so advise you, at such
Public Offering Price less the Concession (as hereinafter defined), payable in
New York Clearing House funds to the order of Pershing, LLC clearing for the
account of Incapital LLC, against delivery of the Securities. If Securities are
purchased and paid for at such Public Offering Price, such Concession will be
paid after the termination of the provisions of Section 3(c) hereof with respect
to such Securities. Notwithstanding the foregoing, unless notified otherwise by
us, payment for and delivery of Securities purchased by you shall be made
through the facilities of The Depository Trust Company, if you are a member,
unless you have otherwise notified us prior to the date specified in a Written
Communication to you from us or, if you are not a member, settlement may be made
through a correspondent who is a member pursuant to instructions which you will
send to us prior to such specified date.
A-1
3. Representations,
Warranties and Agreements.
(a) Registered
Offerings. In the
case of any Offering of Securities that is registered under the Securities Act
(“Registered Offering”), we shall provide you with such number of copies of each
preliminary prospectus and of the final prospectus relating thereto as you may
reasonably request for the purposes contemplated by the Securities Act and the
Securities Exchange Act of 1934 (the “Exchange Act”) and the applicable rules
and regulations of the Securities and Exchange Commission thereunder. You
represent and warrant that you are familiar with Rule 15c2-8 under the Exchange
Act relating to the distribution of preliminary and final prospectuses and agree
that you will comply therewith. You agree to make a record of your distribution
of each preliminary prospectus and, when furnished with copies of any revised
preliminary prospectus, you will, upon our request, promptly forward copies
thereof to each person to whom you have theretofore distributed a preliminary
prospectus. You agree that in purchasing Securities in a Registered Offering you
will rely upon no statement whatsoever, written or oral, other than the
statements in the final prospectus delivered to you by us. You will not be
authorized by the issuer or other seller of Securities offered pursuant to a
prospectus or by any Underwriter to give any information or to make any
representation not contained in the prospectus in connection with the sale of
such Securities.
(b) Offerings
Pursuant to an Offering Circular. In the
case of any Offering of Securities, other than a Registered Offering, which is
made pursuant to an offering circular or other document comparable to a
prospectus in a Registered Offering, we shall provide you with such number of
copies of each preliminary offering circular and of the final offering circular
relating thereto as you may reasonably request. You agree that you will comply
with the 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 brokers or dealers. You agree that in
purchasing Securities pursuant to an offering circular you will rely upon no
statements whatsoever, written or oral, other than the statements in the final
offering circular delivered to you by us. You will not be authorized by the
issuer or other seller of Securities offered pursuant to an offering circular or
by any Underwriter to give any information or to make any representation not
contained in the offering circular in connection with the sale of such
Securities.
A-2
(c) Offer
and Sale to the Public. With
respect to any Offering of Securities, we will inform you by a Written
Communication of the public offering price, the selling concession, the
reallowance (if any) to dealers and the time when you may commence selling
Securities to the public. After such public offering has commenced, we may
change the public offering price, the selling concession and the reallowance to
dealers. The offering price, selling concession and reallowance (if any) to
dealers at any time in effect with respect to an Offering are hereinafter
referred to, respectively, as the “Public Offering Price”, the “Concession” and
the “Reallowance”. With respect to each Offering of Securities, until the
provisions of this Section 3(c) shall be terminated pursuant to Section 4
hereof, you agree to offer Securities to the public at no more than the Public
Offering Price. If so notified by us, you may sell Securities to the public at a
lesser negotiated price than the Public Offering Price, but in an amount not to
exceed the “Concession.” If a Reallowance is in effect, a reallowance from the
Public Offering Price not in excess of such Reallowance may be allowed as
consideration for services rendered in distribution to dealers who are actually
engaged in the investment banking or securities business, who execute the
written agreement prescribed by Rule 2740 of Conduct Rules of the National
Association of Securities Dealers, Inc. (the “NASD”) and who are either members
in good standing of the NASD or foreign banks, dealers or institutions not
eligible for membership in the NASD who represent to you that they will promptly
reoffer such Securities at the Public Offering Price and will abide by the
conditions with respect to foreign banks, dealers and institutions set forth in
Section 3(e) hereof.
(d) Over-allotment;
Stabilization; Unsold Allotments. We may,
with respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree that,
upon our request at any time and from time to time prior to the termination of
the provisions of Section 3(c) hereof with respect to any Offering, you will
report to us the amount of Securities purchased by you pursuant to such Offering
which then remain unsold by you and will, upon our request at any such time,
sell to us for our account or the account of one or more Underwriters such
amount of such unsold Securities as we may designate at the Public Offering
Price less an amount to be determined by us not in excess of the Concession. If,
prior to the later of (i) the termination of the provisions of Section 3(c)
hereof with respect to any Offering or (ii) the covering by us of any short
position created by us in connection with such Offering for our account or the
account of one or more Underwriters, we purchase or contract to purchase for our
account or the account of one or more Underwriters in the open market or
otherwise any Securities purchased by you under this Agreement as part of such
Offering, you agree to pay us on demand an amount equal to the Concession with
respect to such Securities (unless you shall have purchased such Securities
pursuant to Section 2 hereof at the Public Offering Price in which case we shall
not be obligated to pay such Concession to you pursuant to Section 2) plus
transfer taxes and broker’s commissions or dealer’s xxxx-up, if any, paid in
connection with such purchase or contract to purchase.
A-3
(e) NASD. You
represent and warrant that you are actually engaged in the investment banking or
securities business and either a member in good standing of the NASD or, if you
are not such a member, you are a foreign bank, dealer or institution not
eligible for membership in the NASD which agrees to make no sales within the
United States, its territories or its possessions or to persons who are citizens
thereof or residents therein, and in making other sales to comply with the
NASD’s interpretation with respect to free riding and withholding. You further
represent, by your participation in an Offering, that you have provided to us
all documents and other information required to be filed with respect to you,
any related person or any person associated with you or any such related person
pursuant to the supplementary requirements of the NASD’s interpretation with
respect to review of corporate financing as such requirements relate to such
Offering.
You agree
that, in connection with any purchase or sale of the Securities wherein a
Concession, discount or other allowance is received or granted, (1) you will
comply with the provisions of Rule 2740 of the Conduct Rules and (2) if you are
a non-NASD member broker or dealer in a foreign country, you will also comply
(a), as though you were an NASD member, with the provisions of Rules 2730 and
2750 thereof and (b) with Rule 2420 thereof as that section applies to a
non-NASD member broker or dealer in a foreign country.
You
further agree that, in connection with any purchase of securities from us that
is not otherwise covered by the terms of this Agreement (whether we are acting
as manager, as a member of an underwriting syndicate or a selling group or
otherwise), if a selling Concession, discount or other allowance is granted to
you, clauses (1) and (2) of the preceding paragraph will be
applicable.
(f) Relationship
among Underwriters and Selected Dealers. We may
buy Securities from or sell Securities to any Underwriter or Selected Dealer
and, without consent, the Underwriters (if any) and the Selected Dealers may
purchase Securities from and sell Securities to each other at the Public
Offering Price less all or any part of the Concession. Unless otherwise
specified in a separate agreement between you and us, this agreement does not
authorize you to act as agent for: (i) us; (ii) any Underwriter; (iii) the
issuer; or (iv) other seller of any Securities in offering Securities to the
public or otherwise. Neither we nor any Underwriter shall be under any
obligation to you except for obligations assumed hereby or in any Written
Communication from us in connection with any Offering. Nothing contained herein
or in any Written Communication from us shall constitute the Selected Dealers an
association or partners with us or any Underwriter or with one another. If the
Selected Dealers, among themselves or with the Underwriters, should be deemed to
constitute a partnership for Federal income tax purposes, then you elect to be
excluded from the application of Subchapter K, Chapter 1, Subtitle A of the
Internal Revenue Code of 1986 and agree not to take any position inconsistent
with that election. You authorize us, in our discretion, to execute and file on
your behalf such evidence of that election as may be required by the Internal
Revenue Service. In connection with any Offering, you shall be liable for your
proportionate amount of any tax, claim, demand or liability that may be asserted
against you alone or against one or more Selected Dealers participating in such
Offering, or against us or the Underwriters, based upon the claim that the
Selected Dealers, or any of them, constitute an association, an unincorporated
business or other entity, including, in each case, your proportionate amount of
any expense incurred in defending against any such tax, claim, demand or
liability.
A-4
(g) Blue
Sky Laws. Upon
application to us, we shall inform you as to any advice we have received from
counsel concerning the jurisdictions in which Securities have been qualified for
sale or are exempt under the securities or blue sky laws of such jurisdictions,
but we do not assume any obligation or responsibility as to your right to sell
Securities in any such jurisdiction.
(h) Compliance
with Law. You
agree that in selling Securities pursuant to any Offering (which agreement shall
also be for the benefit of the issuer or other seller of such Securities) you
will comply with all applicable laws, rules and regulations, including the
applicable provisions of the Securities Act and the Exchange Act, the applicable
rules and regulations of the Securities and Exchange Commission thereunder, the
applicable rules and regulations of the NASD, the applicable rules and
regulations of any securities exchange having jurisdiction over the Offering and
the applicable laws, rules and regulations specified in Section 3(b)
hereof.
Furthermore,
you acknowledge and agree that certain Offerings of Securities (i) may be made
in the United States only and/or (ii) may be offerings of Securities of an
affiliate of a United States bank but are not savings accounts, deposits or
other obligations of any such bank and would not be guaranteed by such bank or
insured by the Federal Deposit Insurance Corporation or any other governmental
agency.
4. Termination,
Supplements and Amendments. This
Agreement shall continue in full force and effect until terminated by a written
instrument executed by each of the parties hereto. This Agreement may be
supplemented or amended by us by written notice thereof to you, and any such
supplement or amendment to this Agreement shall be effective with respect to any
Offering to which this Agreement applies after the date of such supplement or
amendment. Each reference to “this Agreement” herein shall, as appropriate, be
to this Agreement as so amended and supplemented. The terms and conditions set
forth in Section 3(c) hereof with regard to any Offering will terminate at the
close of business on the 30th day after the commencement of the public offering
of the Securities to which such Offering relates, but in our discretion may be
extended by us for a further period not exceeding 30 days and in our discretion,
whether or not extended, may be terminated at any earlier time.
5. Successors
and Assigns. This
Agreement shall be binding on, and inure to the benefit of, the parties hereto
and other persons specified in Section 1 hereof, and the respective successors
and assigns of each of them.
6. Governing
Law. This
Agreement and the terms and conditions set forth herein with respect to any
Offering together with such supplementary terms and conditions with respect to
such Offering as may be contained in any Written Communication from us to you in
connection therewith shall be governed by, and construed in accordance with, the
laws of the State of New York.
A-5
Please
confirm by signing and returning to us the enclosed copy of this Agreement that
your subscription to, or your acceptance of any reservation of, any Securities
pursuant to an Offering shall constitute (i) acceptance of and agreement to the
terms and conditions of this Agreement (as supplemented and amended pursuant to
Section 4 hereof) together with and subject to any supplementary terms and
conditions contained in any Written Communication from us in connection with
such Offering, all of which shall constitute a binding agreement between you and
us, individually or as representative of any Underwriters, (ii) confirmation
that your representations and warranties set forth in Section 3 hereof are true
and correct at that time, (iii) confirmation that your agreements set forth in
Sections 2 and 3 hereof have been and will be fully performed by you to the
extent and at the times required thereby and (iv) in the case of any Offering
described in Section 3(a) and 3(b) hereof, acknowledgment that you will request
and have received from us sufficient copies of the final prospectus or offering
circular, as the case may be, with respect to such Offering in order to comply
with your undertakings in Section 3(a) or 3(b) hereof.
Very
truly yours,
INCAPITAL
LLC
By:
__________________________
Xxxxxxx
X. Xxxxxxx
Chief
Operating Officer
CONFIRMED:
______________________, 20___
«Company»
By:
______________________________________
Name:
___________________________________
(Print
name)
Title:
____________________________________
A-6
