AGREEMENT
THE FIRST TRUST SPECIAL SITUATIONS TRUST, SERIES 170
December 9, 1996
Nike Securities L.P.
0000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Gentlemen:
1. General. We understand that you, Nike Securities L.P.
(the "Sponsor"), are entering into this agreement (the
"Agreement") in counterpart with us for issues of The First Trust
Special Situations Trust, Series 170 (the "Fund"), a unit
investment trust for which you will act as Sponsor. By
acceptance of this Agreement we acknowledge that our
participation as Underwriter in the proposed offering shall be
subject to the provisions of this Agreement and, as such, we
elect to act as an underwriter ("Underwriter") of units of
fractional, undivided interests in the Fund. The reference to
"Fund" in this Agreement applies only to such Fund, and such
units of fractional undivided interests in such Fund offered are
hereinafter called the "Units." You have advised us that the
Fund is registered as a "unit investment trust" under the
Investment Company Act of 1940 (the "1940 Act") by filing a
Notification of Registration on Form N-8A and a Registration
Statement on Form N-8B-2 with the Securities and Exchange
Commission (the "Commission").
The Units to be offered in any offering will be registered
under the Securities Act of 1933, as amended (the "1933 Act").
The registration statement for the Units filed under the 1933 Act
as finally amended and revised at the time it becomes effective
is herein referred to as the "Registration Statement" and the
related prospectus is herein referred to as the "Prospectus,"
except that if the prospectus filed by the Fund pursuant to
Rule 497(b) under the 1933 Act shall differ from the prospectus
on file at the time the Registration Statement shall become
effective, the term "Prospectus" shall refer to the prospectus
filed pursuant to Rule 497(b) from and after the date on which it
shall have been filed. Capitalized words used in this Agreement
which are not separately defined herein shall have the respective
meanings given to them in the Prospectus.
2. Designation and Authority of Representative. You are
hereby authorized to act as our representative (the
"Representative") in connection with the Fund for all matters to
which this Agreement relates and to take the action provided
herein to be taken by you.
You will be under no liability to us for any act or omission
except for obligations expressly assumed by you herein, and no
obligations on your part will be implied or inferred herefrom.
The rights and liabilities of the respective parties hereto are
several and not joint and nothing herein or hereunder will
constitute them a partnership, association or separate entity.
3. Profit or Loss in Acquisition of Securities. It is
understood that the acquisition of portfolio securities (the
"Securities") for deposit in the portfolio of the Fund shall be
at your cost and risk. Accordingly, if the aggregate cost of the
Securities to the Fund on the date they are delivered to the
Trustee for deposit in the Fund, on the basis of the Trustee's
determination of offering price, shall be less than their actual
aggregate acquisition cost to the Sponsor, any such loss, without
limitation or restriction, shall be borne by you alone. If the
aggregate cost of such Securities, as so determined, shall exceed
the aggregate cost of such Securities to you as Sponsor, any such
profit, without limitation or restriction, shall be received by
you alone.
We agree that you shall have no liability (as Representative
or otherwise) with respect to the issue, form, validity,
legality, enforceability, value of, or title to the Securities,
except for the exercise of due care in determining the
genuineness of such Securities and the conformance therefor with
the descriptions and qualifications appearing in the Prospectus.
4. Purchase of Units. Based upon representations made by
you as to the nature of the Fund, we have agreed to participate
in the offering of Units of the Fund. We will advise you
promptly as to the number of Units which we will purchase. Such
advice may be by telegraph, telegram or other form of wire or
facsimile transmission, including a wire transfer to your account
of funds for payment of Units purchased by us. You may rely on
and we hereby commit on the terms and conditions of this
Agreement to purchase and pay for the number of Units of the Fund
set forth in such advice (the "Unit Commitment"). Our Unit
Commitment may be increased only by mutual agreement between us
and you at any time prior to the Initial Date of Deposit. We
agree that you in your sole discretion reserve the right to
decrease our Unit Commitment at any time prior to the Initial
Date of Deposit, and if you so elect to make such a decision you
will notify us of such election by telephone and promptly confirm
the same by telegraph or writing. We hereby agree with you to
purchase from you and, to pay for on the First Settlement Date,
the number of Units (the "Initial Units") in the Fund designated
for purchase on such date by our Unit Commitment. The price to
be paid on the First Settlement Date for each such Unit shall be
the Public Offering Price per Unit, at the close of business on
the Initial Date of Deposit less the concession set forth in the
Prospectus which is applicable to the Unit Commitment, assuming
for the purposes only of the Unit Commitment that all Units
committed for are purchased on the Initial Date of Deposit. The
price we pay for the purchase of Units shall represent the only
expense for which we are responsible. All other expenses of the
Trust, to the extent not paid for by the Trust or the Trustee,
will be paid for by you.
On the Initial Date of Deposit, notwithstanding that we pay
for our Initial Units on the First Settlement Date, we will
become the owner of such Initial Units and entitled to the
benefits as well as the risks inherent therein.
You are authorized to retain custody of our Initial Units
until the Registration Statement relating thereto has become
effective under the 1933 Act.
You agree that if we commit in our Unit Commitment to
purchase $500,000 or more of the Fund, we may elect to purchase
any designated number of Units in excess of those to be purchased
pursuant to the Unit Commitment in amounts of at least $100,000
subsequent to the Initial Date of Deposit. You agree that we
may, on the date of any Subsequent Deposit (the "Subsequent Date
of Deposit"), purchase any amount of Units so deposited. The
price to be paid on the Settlement Date for Units purchased on
each Subsequent Date of Deposit shall be the Public Offering
Price per Unit as of the close of business on such Subsequent
Date of Deposit less the concession set forth in the Prospectus
applicable to the entire Unit Commitment.
You are authorized to file an amendment to said Registration
Statement describing the Securities and furnish information based
thereon or relating thereto and any further amendments or
supplements to the Registration Statement or Prospectus which you
may deem necessary or advisable. We will furnish you upon your
request such information as will be required to insure that the
Registration Statement and Prospectus are current insofar as they
relate to us, and we will thereafter continue to furnish you with
such information as may be necessary to keep current and correct
the information previously supplied which relates to us.
We understand that you will cause the Fund to take action
with respect to the offering and sale of Units in accordance with
the Blue Sky or securities laws of certain states in which it is
proposed that the Units may be offered and sold. In addition, we
agree to provide sales information to you which will contain
detailed information regarding the number of Units sold and the
jurisdictions in which such Units were sold within thirty (30)
days of such sales.
5. Public Offering. You agree that you will advise us
promptly, confirming same in writing, when the Registration
Statement has become effective under the 1933 Act, and we agree
that when we are advised that the Units are released for public
offering we will make a public offering thereof by means of the
Prospectus. The Public Offering Price and the terms and
conditions of the public offering shall be as set forth in the
Prospectus. You shall determine the Public Offering Price in the
manner described in the Prospectus and shall rely with respect to
the offering price of the Securities upon the determination of
the Evaluator named in the Prospectus. Public advertisement of
the offering may be made by you on behalf of us on such date as
you shall determine in such form as we may mutually agree upon.
6. Public Offering Price. We agree that each day while
this Agreement is in effect for the Fund and the evaluation of
the Fund is made by the Evaluator named in the Prospectus, we
will contact you for such evaluation and the resultant Public
Offering Price for the purpose of the offering and sale of Units
to the public. We agree, as required by Section 22(d) of the
1940 Act, to offer and sell our Units at the current Public
Offering Price described in the Prospectus.
7. Permitted Transactions. It is agreed that we may make
purchases and sales from or to any other dealer firm less an
agreed upon take-down from the Public Offering Price. It is
further agreed that part or all of the Units purchased by us may
be sold to dealers at the then effective Public Offering Price,
less the dealer's concession described in the Prospectus.
From time to time prior to the termination this Agreement,
at your request, we will advise you of the number of Units which
we have purchased to such date which remain unsold.
Until the termination of this Agreement, we agree that we
will make no purchase of Units other than (i) purchases provided
for in this Agreement; (ii) purchases approved by you; and (iii)
purchases as broker in executing unsolicited orders.
8. Other Agreements. We hereby agree as follows:
(a) we will refund, on demand and without deduction,
all sales charges to purchasers of Units from us or any dealer
participating in the distribution of our Units if, within 90 days
from the time that the Registration Statement of the Units under
the 1933 Act shall have become effective, (i) the net worth of
the Fund shall be reduced to less than $100,000 or (ii) the Fund
shall have been terminated;
(b) you may instruct the Trustee of the Fund that, in
the event that redemption by the Underwriter of Units
constituting part of any unsold allotment of Units which in the
aggregate exceed 60% of the Units deposited in the Fund during
the primary offering period, the Trustee shall terminate the Fund
in the manner provided in the Indenture for the Fund and
distribute the Securities and other assets of the Fund pursuant
to the provisions of the Indenture; and
(c) in the event that the Fund shall have been
terminated pursuant to (b) above, we will refund any sales
charges to any purchaser of Units purchased from us, or purchased
from a dealer participating in the distribution of our Units, on
demand and without deduction. We authorize you to charge our
account for all refunds of sales charges in respect of our Units.
9. Termination. This Agreement shall terminate with
respect to the Fund covered hereby 30 days after the period in
which the public offering of the Units of the Fund is made in
accordance with Section 5 hereof, unless sooner terminated by
you.
We agree to pay any stamp taxes which may be assessed and
paid after settlement on account of any Units received or sold
hereunder for our account.
Notwithstanding any termination of this Agreement, no sale
of the Units of the Fund shall be made by us at any time except
in conformity with the provisions of Section 22(d) of the 1940
Act.
10. Notices. Notices hereunder shall be deemed to have
been duly given if mailed or telegraphed to us at our address set
forth herein in the case of notices to us, or to you at 3rd
Floor, 0000 Xxxxxxxxxxx Xxxx, Xxxxx, Xxxxxxxx 00000, in the case
of notices to you.
11. Net Capital. You represent that you, and we represent
that we, are in compliance with the capital requirements of
Rule 15c3-1, promulgated by the Commission under the Securities
Exchange Act of 1934, and we may, in accordance with and pursuant
to such Rule 15c3-1, agree to purchase the amount of Units to be
purchased by you and us, respectively, under the Agreement.
12. Miscellaneous. We confirm that we are a member in good
standing of the National Association of Securities Dealers, Inc.
We also confirm that we will take reasonable steps to
provide the Prospectus to any person making written request
therefor to us and to each person associated with us expected to
solicit customers' orders for the Units. We understand that you
will supply us upon our request with sufficient copies of such
Prospectuses to comply with the foregoing.
This Agreement is being executed by us and delivered to you
in duplicate. Upon your confirmation hereof, this Agreement
shall constitute a valid and binding contract between us.
Very truly yours,
XXXXXX XXXXXXXXXX XXXXX INC.
__________________________________
Your firm name and address are listed below in the exact
manner as they will appear in the Prospectus. Please indicate if
this is correct.
Xxxxxx Xxxxxxxxxx Xxxxx Inc.
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Confirmed as of the date set forth at the head of this Agreement.
NIKE SECURITIES L.P.
Xxxxxx Xxxxx
Senior Vice President
