XXXXXX XXXXXX & COMPANY, INC.
MASTER AGREEMENT AMONG UNDERWRITERS
BASIC PROVISIONS FOR OFFERINGS OF SECURITIES
Ladies and Gentlemen:
From time to time Xxxxxx Xxxxxx & Company, Inc., ("We" or the "Manager") may
invite you to participate on the terms set forth herein as an underwriter or an
initial purchaser, or in a similar capacity, in connection with certain
offerings of securities that are managed solely by us or with one or more other
co-managers. If we invite you to participate in a specific offering and sale (an
"Offering") to which this Master Agreement Among Underwriters (the "Xxxxxx
Xxxxxx & Company, Inc. Master AAU") shall apply, we will send the information
set forth below in Section 1 (a) to you by one or more wires, telexes,
facsimiles or electronic data transmissions or other written communications
(each a "Wire" and collectively, an "AAU"). Each Wire will indicate that it is a
Wire pursuant to the Xxxxxx Xxxxxx & Company, Inc. Master AAU. The Wire inviting
you to participate in an Offering is referred to herein as the "Invitation
Wire." You and We hereby agree that the provisions of the Xxxxxx Xxxxxx &
Company, Inc. Master AAU automatically are incorporated by reference in each
AAU, except that any AAU may also exclude or revise such provisions of the
Xxxxxx Xxxxxx & Company, Inc. Master AAU or contain such additional provisions
as may be specified in the AAU.
1. GENERAL.
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(a) TERMS OF AAU; CERTAIN DEFINITIONS; CONSTRUCTION. Each AAU shall relate
to an Offering and shall identify (i) the securities to be offered in the
Offering (the "Securities"), their principal terms, the issuer or issuers
(each an "Issuer") and any guarantor (each a "Guarantor") thereof and, if
different from the Issuer, the seller or sellers (each a "Seller") of the
Securities, (ii) the underwriting agreement, purchase agreement, standby
underwriting agreement, distribution agreement or similar agreement (as
identified in the AAU and as amended or supplemented, including a terms
agreement or pricing agreement pursuant to any of the foregoing,
collectively, the "Underwriting Agreement") providing for the purchase, on
a several and not joint basis, of the Securities by the several
underwriters, initial purchasers or others acting in a similar capacity on
whose behalf the Manager executes the Underwriting Agreement (the
"Underwriters") and whether such agreement provides (x) an option to
purchase Additional Securities (as defined below) or (y) for an offering
(an "International Offering") involving two or more syndicates, each of
which will offer and sell Securities subject to such restrictions as shall
be specified in any Intersyndicate Agreement (as defined below) referred to
in the AAU, (iii) the price at which the Securities are to be purchased by
the several Underwriters from any Issuer or Seller thereof (the "Purchase
Price"), (iv) the offering terms, including, if applicable, the price or
prices at which the Securities initially will be offered by the
Underwriters (the "Offering Price"), any selling concession to dealers (the
"Selling Concession), reallowance (the "Reallowance"), management fee,
global coordinators' fee, or other similar fees, discounts or commissions
(collectively, the "Fees and Commissions") with respect to the Securities,
(v) the proposed pricing date ("Pricing Date") and settlement date (the
"Settlement Date"), (vi) any contractual restrictions on the offer and sale
of the Securities pursuant to the Underwriting Agreement, Intersyndicate
Agreement or otherwise, (vii) any co-managers for the Offering (the
"Co-Managers"), (viii) your proposed participation in the Offering, (ix) if
applicable, the trustee, fiscal agent or similar agent (the "Trustee") for
the indenture, trust agreement, fiscal agency agreement or similar
agreement (the "Indenture") under which the Securities will be issued and
(x) any other principal terms of the Offering.
The term "Underwriters" includes the Manager and the Co-Managers. The term
"Firm Securities" means the number or amount of Securities that the several
Underwriters are initially committed to purchase under the Underwriting
Agreement (which may be expressed as a percentage of an aggregate number or
amount of Securities to be purchased by the Underwriters as in the case of
a standby Underwriting Agreement). The term "Additional Securities" means
the Securities, if any, that the several Underwriters have an option to
purchase under the Underwriting Agreement to cover over-allotments. The
number, amount or percentage of Firm Securities set forth opposite each
Underwriter's name in the Underwriting Agreement plus any additional Firm
Securities that the Underwriter has become obligated to purchase under the
Underwriting Agreement or Section 9 hereof is hereinafter referred to as
the "Original Purchase Obligation" of the Underwriter. The ratio which such
Original Purchase Obligation bears to the total of all Firm Securities set
forth in the Underwriting Agreement (or, in the case of a standby
Underwriting Agreement, to 100%) is hereinafter referred to as the
"Underwriting Percentage" of such Underwriter.
References herein to statutory sections, rules, regulations, forms and
interpretive materials shall be deemed to include any successor provisions.
(b) ACCEPTANCE OF AAU. You shall have accepted an AAU for an Offering if
We receive your acceptance of our invitation to participate in the Offering
before the deadline specified in the Invitation Wire for the Offering, by
wire, telex, facsimile or electronic data transmission or other written
communication (any such manner of communication being deemed "In Writing"
(or orally, if promptly confirmed In Writing)) in the manner specified in
the Invitation Wire. If we receive your timely acceptance, the AAU shall
constitute a valid and binding contract between us. Your acceptance of the
Invitation Wire shall also constitute acceptance by you of the terms of any
subsequent Wire to you relating to the Offering unless We receive In
Writing, within the time and in the manner specified in the subsequent
Wire, a notice from you to the effect that you do not accept the terms of
the subsequent Wire, in which case, you shall be deemed to have elected not
to participate in the Offering.
(c) UNDERWRITERS' QUESTIONNAIRE. Your acceptance of the Invitation Wire
shall confirm that you have no exceptions to the Underwriters'
Questionnaire attached as Exhibit A hereto (or to any other questions
addressed to you in any Wires relating to the Offering) other than
exceptions noted by you In Writing in connection with the Offering and
received from you by us before the time specified in the Invitation Wire or
any subsequent Wire.
(d) AFFILIATION. Xxxxxx Xxxxxx & Company, Inc is a registered broker-dealer
and operates as a division of Regions Financial Corporation.
2. OFFERING MATERIALS; OFFERING AGREEMENTS.
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(a) REGISTERED OFFERINGS. In the case of an Offering that will be
registered in whole or in part (a "Registered Offering") under the
Securities Act of 1933, as amended (the "Securities Act"), you understand
that the Issuer has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to
the Securities. The term "Registration Statement" means such registration
statement as amended or deemed to be amended prior to the effective date of
the Underwriting Agreement and, in the event the Issuer files an
abbreviated registration statement to register additional Securities
pursuant to Rule 462(b) under the Securities Act, such abbreviated
registration statement. The term "Prospectus" means the prospectus,
together with the final prospectus supplement, if any, relating to the
Offering first used to confirm sales of Securities. In the case of a
Registered Offering that is an International Offering, the term
"Prospectus" shall mean, collectively, each prospectus or offering
circular, together with each final prospectus supplement or final offering
circular supplement, if any, relating to the Offering, in the respective
forms first used or made available for use to confirm sales of Securities.
The term "Preliminary Prospectus" means any preliminary prospectus relating
to the Offering or any preliminary prospectus supplement together with a
prospectus relating to the Offering. In the case of a Registered Offering
that is an International Offering, the term "Preliminary Prospectus" shall
mean, collectively, each preliminary prospectus or preliminary offering
circular relating to the Offering or each preliminary prospectus supplement
or preliminary offering circular supplement, together with a prospectus or
offering circular, respectively, relating to the Offering. The terms
"Registration Statement," "Prospectus" and "Preliminary Prospectus" include
the material, if any, incorporated by reference therein. The terms
"Registration Statement," "Prospectus" and "Preliminary Prospectus,"
together with the "Offering Circular," "Preliminary Offering Material" and
"Supplementary Offering Materials" (each defined below) and any supplements
or amendments thereto, are collectively referred to as the "Offering
Documents." We will furnish you, or make arrangements for you to obtain,
copies of each Prospectus and Preliminary Prospectus (but excluding for
this purpose, unless otherwise required pursuant to regulations under the
Securities Act, documents incorporated therein by reference) as soon as
practicable after sufficient quantities have been made available by the
Issuer.
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(b) NON-REGISTERED OFFERINGS. In the case of an Offering other than a
Registered Offering, you understand that no registration statement has been
filed with the Commission. The term "Offering Circular" means an offering
circular or memorandum, if any, or any other written materials authorized
by the Issuer to be used in connection with the Offering. The term
"Preliminary Offering Circular" means a preliminary offering circular or
memorandum, if any, or any other written preliminary materials authorized
by the Issuer to be used in connection with the Offering. The terms
"Offering Circular" and "Preliminary Offering Circular" shall include the
material, if any, incorporated by reference therein. As soon as practicable
after the later of the date of the Invitation Wire or the date they are
made available to us by the Issuer, We will furnish you (or make available
for your review in our office) a copy of any Preliminary Offering Circular
or any proof or draft of the Offering Circular. In any event, in any
Offering involving an Offering Circular, We will furnish for you, or make
arrangements for you to obtain, as soon as practicable after sufficient
quantities thereof are made available by the Issuer, copies of the final
Offering Circular, as amended or supplemented, if applicable (but excluding
for this purpose documents incorporated therein by reference).
(c) AUTHORITY TO EXECUTE UNDERWRITING AND INTERSYNDICATE AGREEMENTS. You
authorize the Manager, on your behalf, (i) to determine the form of the
Underwriting Agreement and to execute and deliver to the Issuer, Guarantor
or Seller the Underwriting Agreement to purchase (A) up to the amount of
Firm Securities set forth in the applicable AAU and (B) if the Manager
elects on behalf of the several Underwriters to exercise any option to
purchase Additional Securities, up to the amount of Additional Securities
set forth in the applicable AAU, subject, in each case, to reduction
pursuant to Section 4, and (ii) to determine the form of any agreement or
agreements between or among the syndicates participating in the Offering
and International Offering, respectively (each an "Intersyndicate
Agreement"), and to execute and deliver any such Intersyndicate Agreement.
3. MANAGER'S AUTHORITY.
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(a) AUTHORITY TO DETERMINE TERMS OF OFFERING. You authorize the Manager to
act as manager of the Offering of the Securities by the Underwriters (the
"Underwriters' Securities" or by the Issuer or Seller pursuant to delayed
delivery contracts (the "Contract Securities"), if any contemplated by the
Underwriting Agreement. You authorize the Manager (i) to purchase any or
all of the Firm Securities and Additional Securities for the accounts of
the several Underwriters pursuant to the Underwriting Agreement, (ii) to
agree, on your behalf and on behalf of the Co-Managers, to any addition to,
change in or waiver of any provision of, or the termination of, the
Underwriting Agreement or any Intersyndicate Agreement (other than an
increase in the Purchase Price or in your Original Purchase Obligation to
purchase Securities, in either case from that contemplated by the
applicable AAU), (iii) to add or remove prospective Underwriters from the
syndicate, or to add to or remove prospective Dealers (defined below) or
Reallowance Dealers from participation in the Offering, (iv) to exercise,
in the Manager's discretion, all of the authority vested in the Manager in
the Underwriting Agreement and (v) except as described below in this
Section 3(a), to take any other action deemed advisable by the Manager in
respect of the Offering (including, without limitation, actions and
communications with the Commission, the National Association of Securities
Dealers, Inc. (the "NASD"), state blue sky or securities commissions, stock
exchanges and other regulatory bodies or organizations). If, in accordance
with the terms of the applicable AAU, the Offering of the Securities is at
varying prices based on prevailing market prices or prices related to
prevailing market prices or at negotiated prices, you authorize the Manager
to determine, on your behalf in the Manager's discretion, any Offering
Price and the Fees and Commissions applicable to the Offering from time to
time. You authorize the Manager on your behalf to arrange for any currency
transactions (including forward and hedging currency transactions) as the
Manager deems necessary to facilitate settlement of the purchase of the
Securities, but you do not authorize the Manager on your behalf to engage
in any other forward or hedging transactions in connection with the
Offering unless such transactions are specified in an applicable AAU or
otherwise consented to by you. You further authorize the Manager, subject
to the provisions of Section 1(b) hereof, (i) to vary the offering terms of
the Securities in effect at any time, including, if applicable, the
Offering Price and Fees and Commissions set forth in the applicable AAU,
(ii) to determine, on your behalf, the Purchase Price and (iii) to increase
or decrease the number, amount or percentage of Securities being offered.
Notwithstanding the foregoing provisions of this Section 3(a), the Manager
shall notify the Underwriters, before signing the applicable Underwriting
Agreement, of any provision in the Underwriting Agreement that could result
in an increase in the amount or percentage of Firm Securities set forth
opposite each Underwriter's name in the Underwriting Agreement by more than
25% (or such other percentage specified in the applicable Invitation Wire
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or otherwise consented to by you) as a result of the failure or refusal of
another Underwriter or Underwriters to perform its or their obligations
thereunder.
(b) OFFERING DATE. The Offering is to be made as soon after the
Underwriting Agreement is entered into by the Issuer, Guarantor or Seller
and the Manager as in the Manager's judgment is advisable, on the terms and
conditions set forth in the Prospectus or Offering Circular, as the case
may be, and the applicable AAU. You agree not to sell any Securities before
the time the Manager releases the Securities for sale to purchasers. The
date the Securities are released for sale is referred to herein as the
"Offering Date."
(c) ADVERTISING; SUPPLEMENTAL OFFERING MATERIAL. Any public advertisement
of the Offering shall be made by the Manager on behalf of the Underwriters
on such date as the Manager shall determine. You agree not to advertise the
Offering before the date of the Manager's advertisement thereof without the
Manager's consent. Any advertisement you make of the Offering after such
date is your own responsibility at your own expense and risk. If the
Offering is made in whole or in part in reliance on Rule 144A under the
Securities Act, you agree not to engage in any general solicitation in
connection therewith relating to any advertising or publicity and to abide
by any other restrictions in the AAU or the Underwriting Agreement. You
also agree that you will not, in connection with the offer and sale of the
Securities in the Offering, without the consent of the Manager, give to any
prospective purchaser of the Securities or other person not in your employ
any written information concerning the Offering, the Issuer, the Guarantor
or the Seller, other than information contained in any Preliminary
Prospectus, Prospectus, Preliminary Offering Circular or Offering Circular
or other offering Materials prepared by or with the consent of the Manager
for use by the Underwriters in connection with the Offering and, in the
case of a Registered Offering, filed with the Commission or NASD, as
applicable (the "Supplemental Offering Materials"). See also Sections 10(j)
and 10(k) hereof.
(d) INSTITUTIONAL AND RETAIL SALES. You authorize the Manager to sell to
institutions or retail purchasers such Securities purchased by you pursuant
to the Underwriting Agreement as the Manager shall determine. The Selling
Concession on any such sales shall be credited to the accounts of the
Underwriters as the Manager shall determine.
(e) SALES TO DEALERS. You authorize the Manager to sell to Dealers (as
defined below) such Securities purchased by you pursuant to the
Underwriting Agreement as the Manager shall determine. A "Dealer" is (i) a
broker or dealer (as defined in the Bylaws of the NASD) that is actually
engaged in the investment banking or securities business and is either (A)
a member in good standing of the NASD or (B) a foreign bank, broker, dealer
or other institution not eligible for membership in the NASD that, in the
case of either clause (i) (A) or (i) (B), makes the representations and
agreements applicable to such institutions contained in Section 10(f),
hereof, or (ii) a "Bank") (as defined in Section 3(a)(6) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") in the case of
Offerings of Securities that are exempt securities under Section 3(a)(12)
of the Exchange Act, and such other Securities as from time to time may be
sold by a Bank that is not a member of the NASD and that makes the
representations and agreements applicable to such institutions contained in
Section 10(f) hereof. If the price for any such sales by the Manager to
Dealers exceeds an amount equal to the Offering price less the Selling
Concession set forth in the applicable AAU, the amount of such excess, if
any, shall be credited to the accounts of the Underwriters as the Manager
shall determine.
(f) DIRECT SALES. The Manager will advise you promptly, on the date of the
Offering, as to the Securities purchased by you pursuant to the
Underwriting Agreement that you shall retain for direct sale. At any time
before the termination of the applicable AAU, any Securities held by the
Manager for sale but not sold, may, at your request and at the Manager's
discretion, be released to you for direct sale, and Securities so released
to you shall no longer be deemed held for sale by the Manager. You may
allow, and Dealers may reallow, a discount on sales to Dealers in an amount
not in excess of the Reallowance set forth in the applicable AAU. You may
not purchase Securities from, or sell Securities to, any other Underwriter
or Dealer at any discount or concession other than the Reallowance, except
with the consent of the Manager.
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(g) RELEASE OF UNSOLD SECURITIES. From time to time before termination of
the applicable AAU, at the request of the Manager, you will advise the
Manager of the amount of Securities remaining unsold that were retained by
or released to you for direct sale and of the amount of Securities and
Other Securities (as defined below) purchased for your account remaining
unsold that were delivered to you pursuant to Section 5 hereof or pursuant
to any Intersyndicate Agreement. At the request of the Manager, you will
release to the Manager any such Securities and Other Securities remaining
unsold (i) for sale by the Manager to institutions, Dealers or retail
purchasers, (ii) for sale by the Issuer or Seller pursuant to delayed
delivery contracts or (iii) if, in the Manager's opinion, such Securities
or Other Securities are needed to make delivery against sales made pursuant
to Section 5 hereof or any Intersyndicate Agreement.
(h) INTERNATIONAL OFFERINGS. In the case of an International Offering, you
authorize the Manager (i) to make representations on your behalf as set
forth in any Intersyndicate Agreement and (ii) to purchase or sell for your
account pursuant to the Intersyndicate Agreement (A) Securities, (B) any
other securities of the same class and series, or any securities into which
the Securities may be converted or for which the Securities may be
exchanged or exercised and (C) any other securities designated in the
applicable AAU or applicable Intersyndicate Agreement (the securities
referred to in clauses (B) and (C) above being referred to collectively as
the "Other Securities").
4. DELAYED DELIVERY CONTRACTS.
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(a) ARRANGEMENTS FOR SALES. You agree that arrangements for sales of
Contract Securities will be made only through the Manager acting either
directly or through Dealers (including Underwriters acting as Dealers), and
you authorize the Manager to act on your behalf in making such
arrangements. The aggregate amount of Securities to be purchased by the
several Underwriters shall be reduced by the respective amount of Contract
Securities attributed to such Underwriters as hereinafter provided. Subject
to the provisions of Section 4(b), the aggregate amount of Contract
Securities shall be attributed to the Underwriters as nearly as practicable
in their respective Underwriting Percentages, except that, as determined by
the Manager in its discretion, (i) Contract Securities directed and
allocated by a purchaser to specific Underwriters shall be attributed to
such Underwriters and (ii) Contract Securities for which arrangements have
been made for sale through Dealers shall be attributed to each Underwriter
approximately in the proportion that Securities of such Underwriter held by
the Manager for sales to Dealers bear to all Securities so held. The fee
with respect to Contract Securities payable to the Manager for the accounts
of the Underwriters pursuant to the Underwriting Agreement shall be
credited to the accounts of the respective Underwriters in proportion to
the Contract Securities attributed to such Underwriters pursuant to the
provisions of this Section 4(a), less, in the case of each Underwriter, the
concession to Dealers on Contract Securities sold through Dealers and
attributed to such Underwriter.
(b) EXCESS SALES. If the amount of Contract Securities attributable to an
Underwriter pursuant to Section 4(a) would exceed such Underwriter's
Original Purchase Obligation reduced by the amount of Underwriters'
Securities sold by or on behalf of such Underwriter, such excess shall not
be attributed to such Underwriter, and such Underwriter shall be regarded
as having acted only as a Dealer with respect to, and shall receive only
the concession to Dealers on, such excess.
5. PURCHASE AND SALE OF SECURITIES; FACILITATION OF DISTRIBUTION.
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(a) PURCHASE AND SALE OF SECURITIES; FACILITATION OF DISTRIBUTION. To
facilitate the distribution and sale of the Securities, you authorize the
Manager to buy and sell Securities and Other Securities, in addition to
Securities sold pursuant to Section 3 hereof, in the open market or
otherwise (including, without limitation, pursuant to any Intersyndicate
Agreement), for long or short account, on such terms as the Manager deems
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advisable, and to over-allot in arranging sales. Such purchases and sales
and over-allotments shall be made for the accounts of the several
Underwriters as nearly as practicable in their respective Underwriting
Percentages or, in the case of any International Offering, such purchases
and sales shall be for such accounts as set forth in the applicable
Intersyndicate Agreement. Any securities purchased by the Manager for
stabilizing purposes in connection with the Offering before execution of
the applicable AAU shall be treated as having been purchased pursuant to
this Section 5(a) for the accounts of the several Underwriters or, in the
case of an International Offering, for such accounts as are set forth in
the applicable Intersyndicate Agreement. Your net commitment pursuant to
the foregoing authorization shall not exceed at the close of business on
any day an amount equal to 20% of your Underwriting Percentage of the
aggregate initial Offering Price of the Firm Securities. In calculating
this net commitment, the initial Offering Price shall be used with respect
to the Securities so purchased or sold and, in the case of all Other
Securities, the purchase price thereof shall be used. Your net commitment
for short account (i.e., "naked short") shall be calculated by assuming
that all Securities that may be purchased upon exercise of any
over-allotment option then exercisable are acquired (whether or not
actually acquired) and, in the case of an International Offering, after
giving effect to the purchase of any Securities or Other Securities that
the Manager has agreed to purchase for your account pursuant to any
applicable Intersyndicate Agreement. On demand you will take up and pay for
any Securities or Other Securities so purchased for your account and any
Securities released to you pursuant to Section 3(g) hereof and will deliver
to the Manager against payment any Securities or Other Securities so sold
or over-allotted for your account or released to you. The Manager agrees to
notify you if it engages in any stabilization transaction requiring reports
to be filed pursuant to Rule 17a-2 under the Exchange Act and to notify you
of the date stabilization is terminated. You agree not to stabilize or
engage in any syndicate covering transaction (as defined in Rule 100 of
Regulation M under the Exchange Act ("Regulation M")) in connection with
the Offering without the prior consent of the Manager. You further agree to
provide the Manager any reports required of you pursuant to Rule 17a-2 not
later than the date specified therein and you authorize the Manager to file
on your behalf with the Commission any reports required by Rule 17a-2.
(b) PENALTY WITH RESPECT TO SECURITIES REPURCHASED BY THE MANAGER. If
pursuant to the provisions of Section 5(a) and prior to the termination of
the Manager's authority to cover any short position incurred under the
applicable AAU or such other date as the Manager shall specify in a Wire,
either:
(i) the Manager purchases or contracts to purchase for the
account of any Underwriter in the open market or otherwise any
Securities which were retained by, or released to, you for direct sale
or any Securities sold pursuant to Section 3(d) for which you received
a portion of the Selling Concession set forth in the applicable AAU,
or any Securities which may have been issued on transfer or in
exchange for such Securities, and which Securities were therefore not
effectively placed for investment; or
(ii) if the Manager has advised you by Wire that trading in the
Securities will be reported to the Manager pursuant to the "Initial
Public Offering Tracking System" of The Depository Trust Company
("DTC") and the Manager determines, based on notices from DTC, that
your customers sold an amount of Securities during any day that
exceeds the amount previously notified to you by Wire;
then you authorize the Manager either (x) to charge your account with an amount
equal to such portion of the Selling Concession set forth in the applicable AAU
received by you with respect to such Securities or, in the case of clause (ii),
such Securities as exceed the amount specified in such Wire or (y) to require
you to repurchase such Securities or, in the case of clause (ii), such
Securities as exceed the amount specified in such Wire, at a price equal to the
total cost of such purchase, including transfer taxes, accrued interest,
dividends and commissions, if any.
(c) COMPLIANCE WITH REGULATION M. You represent that, at all times since
you were invited to participate in the Offering, you have complied with the
provisions of Regulation M applicable to the Offering, in each case as
interpreted by the Commission and after giving effect to any applicable
exemptions. If you have been notified in a Wire that the Underwriters may
conduct passive market making in compliance with Rule 103 of Regulation M
in connection with the Offering, you represent that, at all times since
your receipt of the Wire, you have complied with the provisions of Rule 103
applicable to the Offering, as interpreted by the Commission and after
giving effect to any applicable exemptions.
(d) STANDBY UNDERWRITINGS. You authorize the Manager in its discretion, at
any time on, or from time to time prior to, the expiration of the
conversion right of convertible securities identified in the applicable AAU
the case of securities called for redemption, or the expiration of rights
to acquire securities in the case of rights offerings, for which, in either
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case, standby underwriting arrangements have been made: (i) to purchase
convertible securities or rights to acquire Securities for your account, in
the open market or otherwise, on such terms as the Manager determines and
to convert convertible securities or exercise rights so purchased; and (ii)
to offer and sell the underlying common stock or depositary shares for your
account, in the open market or otherwise, for long or short account (for
purposes of such commitment, such common stock or depositary shares being
considered the equivalent of convertible securities or rights), on such
terms consistent with the terms of the Offering set forth in the Prospectus
or Offering Circular as the Manager determines. On demand you will take up
and pay for any securities so purchased for your account or you will
deliver to the Manager against payment any securities so sold, as the case
may be. During such period you may offer and sell the underlying common
stock or depositary shares, but only at prices set by the Manger from time
to time. Any such sales shall be subject to the Manager's right to sell to
you the underlying common stock or depositary shares as above provided and
to the Manager's right to reserve your Securities purchased, received or to
be received upon conversion. You agree not to bid for, purchase, attempt to
induce others to purchase, or sell, directly or indirectly, any convertible
securities or rights or underlying common stock or depositary shares;
PROVIDED, however, that no Underwriter shall be prohibited from (i) selling
underlying common stock owned beneficially by such Underwriter on the day
the convertible securities were first called for redemption, (ii)
converting convertible securities owned beneficially by such Underwriter on
such date or selling underlying common stock issued upon conversion of
convertible securities so owned, (iii) exercising rights owned beneficially
by such Underwriter on the record date for a rights offering or selling the
underlying common stock or depositary shares issued upon exercise of rights
so owned or (iv) purchasing or selling convertible securities or rights or
underlying common stock or depositary shares as a broker pursuant to
unsolicited orders.
6. PAYMENT AND SETTLEMENT.
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You will deliver to the Manager on the date and at the place and time
specified in the applicable AAU (or on such later date and at such
place and time as may be specified by the Manager in a subsequent Wire)
the funds specified in the applicable AAU, payable to the order of
Xxxxxx Xxxxxx & Company, Inc., for (i) an amount equal to the Offering
Price plus (if not included in the Offering Price) accrued interest,
amortization of original issue discount or dividends, if any, specified
in the Prospectus or Offering Circular, less the applicable Selling
Concession in respect to the Firm Securities to be purchased by you,
(ii) an amount equal to the Offering Price plus (if not included in the
Offering Price) accrued interest, amortization of original issue
discount or dividends, if any, specified in the Prospectus or Offering
Circular, less the applicable Selling Concession in respect of such of
the Firm Securities to be purchased by you as shall have been retained
by or released to you for direct sale as contemplated by Section 3(f)
hereof or (iii) the amount set forth or indicated in the applicable
AAU, as the Manager shall advise. You will make similar payment as the
Manager may direct for Additional Securities, if any, to be purchased
by you on the date specified by the Manager for such payment. The
Manager will make payment to the Issuer or Seller against delivery to
the Manager for your account of the Securities to be purchased by you,
and the Manager will deliver to you the Securities paid for by you
which shall have been retained by or released to you for direct sale.
If the Manager determines that transactions in the Securities are to be
settled through the facilities of DTC or other clearinghouse facility,
payment for and delivery of Securities purchased by you shall be made
through such facilities, if you are a member, or, if you are not a
member, settlement shall be made through your ordinary correspondent
who is a member.
7. EXPENSES.
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(a) MANAGEMENT FEE. You authorize the Manager to charge your account as
compensation for the Manager's and Co-Managers' services in connection with
the Offering, including the purchase from the Issuer or Seller of the
Securities, as the case may be, and the management of the Offering, the
amount, if any, set forth as the management fee, global coordinators' fee,
or other similar fee in the applicable AAU. Such amount shall be divided
among the Manager and any Co-Managers as they may determine.
(b) GENERAL EXPENSES. You authorize the Manager to charge your account with
your Underwriting Percentage of all expenses of a general nature incurred
by the Manager and Co-Managers under the applicable AAU in connection with
the Offering, including the negotiation and preparation thereof, or in
connection with the purchase, carrying, marketing and sale of any
securities under the applicable AAU and any Intersyndicate Agreement,
including, without limitation, legal fees and expenses, transfer taxes,
costs associated with approval of the Offering by the NASD and the costs of
7
currency transactions (including forward and hedging currency transactions)
entered into to facilitate settlement of the purchase of Securities
permitted under Section 3(a) hereof.
8. MANAGEMENT OF SECURITIES AND FUNDS.
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(a) ADVANCES; LOANS; PLEDGES. You authorize the Manager to advance the
Manager's own funds for your account, charging current interest rates, or
to arrange loans for your account for the purpose of carrying out the
provisions of the applicable AAU and any Intersyndicate Agreement. In
connection therewith, you authorize the Manager to hold or pledge as
security therefore all or any securities the Manager may be holding for
your account under the applicable AAU and any Intersyndicate Agreement, to
execute and deliver any notes or other instruments evidencing such advances
or loans and to give all instructions to the lenders with respect to any
such loans and the proceeds thereof. The obligations of the Underwriters
under loans arranged on their behalf shall be several in proportion to
their respective Original Purchase Obligations and not joint. Any lender is
authorized to accept the Manager's instructions as to the disposition of
the proceeds of any such loans. In the event of any such advance or loan,
repayment thereof shall, in the discretion of the Manager, be effected
prior to making any remittance or delivery pursuant to Section 8(b), 8(c)
or 9(b) hereof.
(b) RETURN OF AMOUNT PAID FOR SECURITIES. Out of payment received by the
Manager for Securities sold for your account which have been paid for by
you, the Manager will remit to you promptly an amount equal to the price
paid by you for such Securities.
(c) DELIVERY AND REDELIVERY OF SECURITIES FOR CARRYING PURPOSES. The
Manager may deliver to you from time to time prior to the termination of
the applicable AAU pursuant to Section 9(a) hereof against payment, for
carrying purposes only, any Securities or Other Securities purchased by you
under the applicable AAU or any Intersyndicate Agreement which the Manager
is holding for sale for your account but which are not sold and paid for.
You will redeliver to the Manager against payment any Securities or Other
Securities delivered to you for carrying purposes at such times as the
Manager may demand.
9. TERMINATION; INDEMNIFICATION.
-----------------------------
(a) TERMINATION. Each AAU shall terminate at the close of business on the
later of the date on which the Underwriters pay the Issuer or Seller for
the Securities and 30 full days after the applicable Offering Date, unless
sooner terminated by the Manager. The Manager may at its discretion by
notice to you before termination of the AAU alter any of the terms or
conditions of the Offering to the extent permitted by Section 3 or Section
4 hereof, or terminate or suspend the effectiveness of Section 5 hereof, or
any part thereof. No termination or suspension pursuant to this paragraph
shall affect the Manager's authority under Section 3(a) hereof to take
actions in respect of the Offering or under Section 5 hereof to cover any
short position incurred under the AAU or in connection with covering any
such short position to require you to repurchase Securities as specified in
Section 5(b) hereof.
(b) DELIVERY OR SALE OF SECURITIES; SETTLEMENT OF ACCOUNTS. Upon
termination of each AAU or prior thereto at the Manager's discretion, the
Manager shall deliver to you any Securities paid for by you pursuant to
Section 6 hereof and held by the Manager for sale pursuant to Section 3(d)
or 3(e) hereof but not sold and paid for and any Securities or Other
Securities that are held by the Manager for your account pursuant to the
provision of Section 5 hereof or any Intersyndicate Agreement.
Notwithstanding the foregoing, upon termination of the AAU, if the
aggregate initial Offering Price of any such Securities and the aggregate
purchase price of any Other Securities so held and not sold and paid for
does not exceed an amount equal to 20% of the aggregate initial Offering
Price of the Securities, the Manager may, in its discretion, sell such
Securities and Other Securities for the accounts of the several
Underwriters, at such prices, on such terms, at such times and in such
manner as it may determine. Within the period specified by applicable NASD
rules or, if no period if specified, as soon as practicable after
termination of such AAU, your account shall be settled and paid. The
Manager may reserve from distribution such amount as the Manager deems
advisable to cover possible additional expenses. The determination by the
Manager of the amount so to be paid to or by you shall be final and
conclusive. Any of your funds in the Manager's hands may be held with the
Manager's general funds without accountability for interest.
8
Notwithstanding any provision of this Xxxxxx Xxxxxx & Company, Inc. Master
AAU other than Section 10(l), upon termination of each AAU or prior thereto
at the Manager's discretion, the Manager (i) may allocate to the accounts
of the Underwriters the expenses described in Section 7(b) hereof and any
losses incurred upon the sale of Securities or Other Securities pursuant to
the applicable AAU or any Intersyndicate Agreement (including any losses
incurred upon the sale of securities referred to in Section 5(d)(ii)
hereof), (ii) may deliver to the Underwriters any unsold Securities or
Other Securities purchased pursuant to Section 5(a) hereof or any
Intersyndicate Agreement and (iii) may deliver to the Underwriters any
unsold Securities purchased pursuant to the applicable Underwriting
Agreement, in each case in the Manager's discretion. The Manager shall have
full discretion to allocate expenses and Securities to the accounts of any
Underwriter as the Manager decides, except that (i) no Underwriter (other
than the Manager or a Co-Manager) shall bear more than its share of such
expenses, losses or Securities (such share shall not exceed such
Underwriter's Underwriting Percentage and shall be determined pro rata
among all such Underwriters based on their Underwriting Percentages), (ii)
no such Underwriter shall receive Securities that, together with any
Securities purchased by such Underwriter pursuant to Section 6 (but
excluding any Securities that such Underwriter is required to repurchase
pursuant to Section 5(b)) exceed such Underwriter's Original Purchase
Obligation and (c) no Co-Manager shall bear more than its share, as among
the Manager and the other Co-Managers, of such expenses, losses or
Securities (such share to be determined pro rata among the Manager and all
Co-Managers based on their Underwriting Percentages). If any Securities or
Other Securities returned to you pursuant to clause (ii) or (iii) above
were not paid for by you pursuant to Section 6 hereof, you shall pay to the
Manager an amount per security equal to the amount set forth in Section
6(i), in the case of Securities returned to you pursuant to clause (iii)
above, or the purchase price of such securities, in the case of Securities
or Other Securities returned to you pursuant to clause (ii) above.
(c) POST SETTLEMENT EXPENSES. Notwithstanding any settlement on the
termination of the applicable AAU, you agree to pay any transfer taxes
which may be assessed and paid after such settlement on account of any
sales or transfers under the AAU or any Intersyndicate Agreement for your
account and your Underwriting Percentage of (i) all expenses incurred by
the Manager in investigating, preparing to defend or defending against any
action, claim or proceedings which is asserted or instituted by any party
(including any governmental or regulatory body) relating to (A) the
Offering Documents, (B) the violation of any applicable restrictions on the
offer, sale, resale or purchase of Securities or Other Securities imposed
by United States Federal or state laws or foreign laws and the rules and
regulations of any regulatory body promulgated thereunder or the rules of
any self-regulatory organization or pursuant to the terms of the AAU, the
Underwriting Agreement or any Intersyndicate Agreement or (C) any claim
that the Underwriters constitute a partnership, an association or an
unincorporated business or other separate entity and (ii) any liability,
including attorneys fees, incurred by the Manager in respect of any such
action, claim or proceedings, whether such liability shall be the result of
a judgment or arbitrator's determination or as a result of any settlement
agreed to by the Manager, other than any such expense or liability as to
which the Manager actually receives indemnity pursuant to Section 9(d),
contribution pursuant to Section 9(e), indemnity or contribution pursuant
to the Underwriting Agreement or damages from an Underwriter for breach of
its representations, warranties, agreements, or covenants contained in the
applicable AAU. None of the foregoing provisions of this Section 9(c) shall
relieve any defaulting or breaching Underwriter from liability for its
default or breach.
(d) INDEMNIFICATION. You agree to indemnify and hold harmless each other
Underwriter and each person, if any, who controls any such Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act, to the extent and upon the terms which you agree to
indemnify and hold harmless any of the Issuer, the Guarantor, the Seller,
any Person controlling the Issuer, the Guarantor, the Seller, its directors
and, in the case of a Registered Offering, its officers who signed the
Registration Statement and, in the case of an Offering other than a
Registered Offering, its officers, in each case as set forth in the
Underwriting Agreement.
(e) CONTRIBUTION. Notwithstanding any settlement on the termination of the
applicable AAU, you agree to pay upon request of the Manager, as
contribution, your Underwriting Percentage of any losses, claims, damages
or liability, joint or several, paid or incurred by any Underwriter to any
person other than an Underwriter, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
9
Offering Documents or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading (other than an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with information furnished to the Company in writing
by the Underwriter on whose behalf the request for contribution is being
made expressly for use therein) and your Underwriting Percentage of any
legal or other expense reasonably incurred by the Underwriter (with the
approval of the Manager) on whose behalf the request for contribution is
being made in connection with investigating or defending any such loss,
claim, damage or liability or any action in respect thereof; PROVIDED that
no request shall be made on behalf of any Underwriter guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) from any Underwriter who was not guilty of such fraudulent
misrepresentation. None of the foregoing provisions of this Section 9(e)
shall relieve any defaulting or breaching Underwriter from liability for
its default or breach.
(f) SEPARATE COUNSEL. If any claim is asserted or action or proceeding
commenced pursuant to which the indemnity provided in Section 9(d) may
apply, the Manager may take such action in connection therewith as it deems
necessary or desirable, including retention of counsel for the
Underwriters, and in its discretion separate counsel for any particular
Underwriter or group of Underwriters, and the fees and disbursements of any
counsel so retained by the Manager shall be allocated among the several
Underwriters as determined by the Manager. Any Underwriter may elect to
retain at its own expense its own counsel and, on advice of such counsel
but only with the consent of the Manager, may settle or consent to the
settlement of any such claim, action or proceeding. The Manager may settle
or consent to the settlement of any such claim, action or proceeding.
Whenever the Manager receives a notice of the assertion of any claim,
action or proceeding to which the provisions of Section 9(d) would apply,
it will promptly notify each Underwriter. Whenever you receive notice of
the assertion of any claim or commencement of any action or proceedings to
which the provisions of Section 9(d) would apply, you will give prompt
notice thereof to the Manager. The Manager also will furnish each
Underwriter with periodic reports, at such times as it deems appropriate,
as to the status of such claim, action or proceeding, and the action taken
by it in connection therewith.
(g) SURVIVAL OF AGREEMENTS. Your agreements contained in Sections 3(a), 5,
9(c), 9(d), 9(e), 9(f) and 11 (b) hereof shall remain operative and in full
force and effect regardless of (i) any termination of an AAU or
Intersyndicate Agreement, (ii) any termination of the Underwriting
Agreement, (iii) any investigation made by or on behalf of any Underwriter
or any person controlling any Underwriter or by or on behalf of the Issuer,
the Guarantor, the Seller, its directors or officers or any person
controlling the Issuer, the Guarantor or the Seller and (iv) acceptance of
any payment for any Securities.
10. REPRESENTATIONS AND COVENANTS OF UNDERWRITERS.
---------------------------------------------
(a) KNOWLEDGE OF OFFERING. You understand that it is your responsibility to
examine the Offering Documents and to familiarize yourself with the terms
of the Securities, any applicable Indenture and the other terms of the
Offering to be reflected in the Prospectus or the Offering Circular, as the
case may be, and the applicable AAU and Underwriting Agreement. The Manager
is authorized, with the advice of counsel for the Underwriters, to approve
on your behalf any amendments or supplements to the Registration Statement
and the Prospectus or the Offering Circular, as the case may be.
(b) DISTRIBUTION OF MATERIALS. You will keep an accurate record of the
names and addresses of all persons to whom you give copies of the
Registration Statement, the Prospectus, any Offering Circular or any
Preliminary Prospectus or Preliminary Offering Circular (or any amendment
or supplement thereto). When furnished with any subsequent amendment to the
Registration Statement, any subsequent Prospectus, any subsequent Offering
Circular or any memorandum outlining changes in the Registration Statement
or any Prospectus or Offering Circular, you will, upon request of the
Manager, promptly forward copies thereof to such persons.
(c) ACCURACY OF UNDERWRITERS' INFORMATION. You confirm that the information
that you have given or are deemed to have given in response to the
Underwriters' Questionnaire attached as Exhibit A hereto (and to any other
questions addressed to you in the Invitation Wire or other Wires), which
information has been furnished to the Issuer for use in the Registration
Statement and the Prospectus or the Offering Circular, as the case may be,
10
or has otherwise been relied upon in connection with the Offering, is
complete and accurate. You will notify the Manager immediately of any
development before the termination of the applicable AAU which makes untrue
or incomplete any information you have given or are deemed to have given in
response to the Underwriters' Questionnaire (or such other questions).
(d) NAME, ADDRESS. Unless you have promptly notified the Manager in writing
otherwise, your name as it should appear in the Prospectus or the Offering
Circular and any advertisement, if different, and your address are as set
forth on the signature pages hereof.
(e) CAPITAL REQUIREMENTS. You represent that your commitment to purchase
the Securities (i) will not result in a violation of the financial
responsibility requirements of Rule 15c3-1 under the Exchange Act or of any
similar provision of any applicable rules of the NASD or any securities
exchange to which you are subject of (ii) if you are a financial
institution subject to regulation by the Board of Governors of the Federal
Reserve System, the Comptroller of the Currency or the Federal Deposit
Insurance Corporation, will not place you in violation of any applicable
capital requirements or restrictions of such regulator or any other
regulator to which you are subject.
(f) COMPLIANCE WITH NASD REQUIREMENTS. You represent that you are a member
in good standing of the NASD, a Bank that is not a member of the NASD, or a
foreign bank or dealer not eligible for membership in the NASD. In making
sales of Securities, if you are an NASD member, you agree to comply with
all applicable interpretive material and rules of the NASD, including,
without limitation, IM-2110-1 (the NASD's interpretation with respect to
free-riding and withholding) and Rule 2740. If you are a foreign bank or
dealer, you agree to comply, as applicable, with IM-2110-1 and NASD Rules
2730, 2740 and 2750 as though you were an NASD member and with NASD Rule
2420 as it applies to a nonmember broker or dealer in a foreign country. If
you are a Bank, you agree, to the extent required by applicable law or NASD
rules, that you will not, in connection with the public offering of any
Securities that do not constitute "exempted securities" within the meaning
of Section 3(a)(12) of the Exchange Act or such other Securities as from
time to time may be sold by a Bank, purchase any Securities at a discount
from the Offering Price from any Underwriter or Dealer or otherwise accept
any Fees and Commissions from any Underwriter or Dealer, and you agree to
comply, as applicable, with NASD Rule 2420 as though you were a member.
(g) FURTHER STATE NOTICE. The Manager will file a Further State Notice with
the Department of State of New York, if required.
(h) COMPLIANCE WITH RULE 15C2-8. You agree to comply with Rule 15c2-8 under
the Exchange Act in connection with any Registered Offering and any other
Offering to which the provisions of Rule 15c2-8 are made applicable
pursuant to the AAU or otherwise. In the case of an Offering other than a
Registered Offering, you agree to comply with applicable Federal and state
law, the applicable rules and regulations of any regulatory body
promulgated thereunder or the rules of any self-regulatory organization
governing the use and distribution of offering circulars by underwriters.
(i) DISCRETIONARY ACCOUNTS. In the case of a Registered Offering of
Securities issued by an Issuer that was not, immediately prior to the
filing of the Registration Statement, subject to the requirements of
Section 13(d) or 15(d) of the Exchange Act, you agree that you will not
make sales to any account over which you exercise discretionary authority
in connection with such sale except as otherwise permitted by the
applicable AAU for such Offering.
(j) OFFERING RESTRICTIONS. If you are a foreign bank or dealer and you are
not registered as a broker-dealer under Section 15 of the Exchange Act, you
agree that while you are acting as an Underwriter in respect of the
Securities and in any event during the term of the applicable AAU, you will
not directly or indirectly effect in, or with persons who are nationals or
residents of, the United States, its territories or possessions, any
transactions (except for the purchases provided for in the Underwriting
Agreement and transactions contemplated by Sections 3 and 5 hereof) in
Securities or any Other Securities. It is understood that, except as
specified in the applicable AAU, no action has been taken by the Manager,
the Issuer, the Guarantor or the Seller to permit you to offer Securities
in any jurisdiction other than the United States, in the case of a
Registered Offering, where action would be required for such purpose.
11
(k) REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
You agree to make to each other Underwriter participating in an Offering
the same representations, warranties and agreements, if any, made by the
Underwriters to the Issuer, the Guarantor or the Seller in the applicable
Underwriting Agreement or any Intersyndicate Agreement, and you authorize
the Manager to make such representations, warranties and agreements to the
Issuer, the Guarantor or the Seller on your behalf.
(l) LIMITATION ON THE AUTHORITY OF THE MANAGER TO PURCHASE AND SELL
SECURITIES FOR THE ACCOUNT OF CERTAIN UNDERWRITERS. Notwithstanding any
provision of this AAU authorizing the Manager to purchase or sell any
Securities or Other Securities (including arranging for the sale of
Contract Securities) or over-allot in arranging sales of Securities for the
accounts of the several Underwriters, the Manager may not, in connection
with the Offering of any Securities, make any such purchases, sales or
over-allotments for the account of any Underwriter that, not later than its
acceptance of the Invitation Wire relating to such Offering, has advised
the Manager that, due to its status as or relationship to, a bank or bank
holding company, such purchases, sales or over-allotments are prohibited by
applicable law. If any Underwriter so advises the Manager, the Manager may
allocate any such purchases, sales and over-allotments (and the related
expenses) which otherwise would have been allocated to your account based
on your respective Underwriting Percentage to your account based on the
ratio of your original Purchase Obligation to the Original Purchase
Obligations of all Underwriters other than the advising Underwriter or
Underwriters or in such other manner as the Manager shall determine.
11. DEFAULTING UNDERWRITERS.
-----------------------
(a) EFFECT OF TERMINATION. If the Underwriting Agreement is terminated as
permitted by the terms thereof, your obligations hereunder with respect to
the Offering of the Securities shall immediately terminate except (i) as
set forth in Section 9(g), (ii) you shall remain liable for your
Underwriting Percentage (or such other percentage as may be specified
pursuant to Section 9(b)) of all expenses and for any purchases or sales
made for your account pursuant to the provisions of Section 5 hereof or any
Intersyndicate Agreement and (iii) the termination shall not affect any
obligations of any defaulting or breaching Underwriter.
(b) SHARING OF LIABILITY. If any Underwriter shall default in its
obligations (i) pursuant to Section 5(a), 5(b) or 5(d), (ii) to pay amounts
charged to its account pursuant to Section 7(a); 7(b) or 8(a) or (iii)
pursuant to Section 9(b), 9(c), 9(d), 9(e), 9(f) or 11(a), you will assume
your proportionate share (determined on the basis of the respective
Underwriting Percentages of the non-defaulting Underwriters) of such
obligations, but no such assumption shall relieve any defaulting
Underwriter from liability to the non-defaulting Underwriters, the Issuer,
the Guarantor or the Seller for its default.
(c) ARRANGEMENTS FOR PURCHASES. The Manager is authorized to arrange for
the purchase by others (including the Manager or any other Underwriter) of
any Securities not purchased by any defaulting Underwriter in accordance
with the terms of the applicable Underwriting Agreement or, if the
applicable Underwriting Agreement does not provide arrangements for
defaulting Underwriters, in the discretion of the Manager. If such
arrangements are made, the respective amounts of Securities to be purchased
by the remaining Underwriters and such other person or persons, if any,
shall be taken as the basis for all rights and obligations hereunder, but
this shall not relieve any defaulting Underwriting from liability for its
default.
12. MISCELLANEOUS.
-------------
(a) OBLIGATIONS SEVERAL. Nothing contained in this Xxxxxx Xxxxxx & Company,
Inc. Master AAU or any AAU shall constitute you as a partner with the
Manager or with the other Underwriters, and the obligations of you and each
of the other Underwriters are several and not joint. Each Underwriter
elects to be excluded from the application of Subchapter K, Chapter 1,
Subtitle A, of the United States Internal Revenue Code of 1986, as amended.
Each Underwriter authorizes the Manager, on behalf of the Underwriter, to
execute such evidence of such election as may be required by the United
States Internal Revenue Service.
12
(b) LIABILITY OF MANAGER. The Manager shall be under no liability to you
for any act or omission except for obligations expressly assumed by the
Manager in the applicable AAU.
(c) TERMINATION OF MASTER AGREEMENT AMONG UNDERWRITERS. This Xxxxxx Xxxxxx
& Company, Inc. Master AAU may be terminated by either party hereto upon
five (5) business days' written notice to the other party; provided that
with respect to any Offering for which an AAU was sent prior to such
notice, this Xxxxxx Xxxxxx & Company, Inc. Master AAU as it applies to such
Offering shall remain in full force and effect and shall terminate with
respect to such Offering in accordance with Section 9(a) hereof.
(d) GOVERNING LAW. This Xxxxxx Xxxxxx & Company, Inc. Master AAU and each
AAU shall be governed by and construed in accordance with the laws of the
State of Tennessee without regard to principles of conflicts of laws.
(e) AMENDMENTS. This Xxxxxx Xxxxxx & Company, Inc. Master AAU may be
amended from time to time by consent of the parties hereto. Your consent
shall be deemed to have been given to an amendment to this Xxxxxx Xxxxxx &
Company, Inc. Master AAU, and such amendment shall be effective, five (5)
business days following written notice to you of such amendment if you do
not notify Xxxxxx Xxxxxx & Company, Inc. in writing prior to the close of
business on such fifth business day that you do not consent to such
amendment. Upon effectiveness, the provisions of this Xxxxxx Xxxxxx &
Company, Inc. Master AAU as so amended shall apply each AAU thereafter
entered into except as otherwise specifically provided in any such AAU.
(f) NOTICES. Any notice to any Underwriter shall be deemed to have been
duly given if mailed, sent by wire, telex, facsimile or electronic
transmission or other written communication or delivered in person to the
Underwriter at the address set forth in its Underwriters' Questionnaire.
Any such notice shall take effect upon receipt thereof.
PLEASE CONFIRM YOUR ACCEPTANCE OF THIS MASTER AGREEMENT BY SIGNING AND RETURNING
TO US THE ENCLOSED DUPLICATE COPY.
Very truly yours,
Xxxxxx Xxxxxx & Company, Inc.
By:
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Name:
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Title: MANAGING DIRECTOR
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CONFIRMED: 20__
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NAME OF UNDERWRITER
By:
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Name:
------------------------------------
Title:
-----------------------------------
(IF PERSON SIGNING IS NOT AN OFFICER OR A PARTNER, PLEASE ATTACHE INSTRUMENT OF
AUTHORIZATION.)
Address:
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