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EXHIBIT 10.5
BROKER-DEALER SELLING AGREEMENT
FOR THE SALE OF
CALLABLE ASSET-BACKED PROMISSORY NOTES
ISSUED BY U.S. AUTOMOBILE ACCEPTANCE SNP-IV, INC.
By our signature to this Broker-Dealer Selling Agreement, we agree
with U.S. Automobile Acceptance SNP-IV, Inc. (the "Issuer") to the following
terms governing the sale of the Callable Asset-Backed Promissory Notes (the
"Notes") which are issued on the terms and conditions described in the
Prospectus filed with the Securities and Exchange Commission in connection with
the Issuer's Registration Statement, as amended. It is intended that the
offering and the sale of the Notes will be made pursuant to and in compliance
with the Securities Act of 1933 (the "Act"), and in compliance with the By-Laws
of the National Association of Securities Dealers, Inc. (the "NASD").
1. We agree to act as a Broker-Dealer in connection with the offering of
the Notes of the Issuer.
2. We agree to solicit subscriptions for the purchase of Notes from
qualified persons on the terms and conditions set forth herein and in
the Prospectus. In connection therewith, we agree to comply with the
terms and conditions of this Agreement and we agree to use our best
efforts to solicit subscriptions for the Notes from purchasers
acceptable to the Issuer.
3. We will obtain from each purchaser a properly executed Subscription
Agreement accompanied by Purchaser's check in full payment of
purchaser's subscription, which shall be supplied to the Issuer for
review and acceptance or rejection. Checks shall be transmitted to the
Escrow Agent by noon of the next business day following receipt. We
will make every reasonable effort to be assured that each person who
may be offered or sold Notes meets the suitability standards set forth
in the Prospectus and that an investment in said Notes is appropriate
to such person's investment objectives and financial situation. In
connection therewith, we will obtain and preserve information from
each investor which indicates that the investor meets such suitability
standards and shall, upon request by the Issuer, make copies of such
information available to the Issuer.
4. We understand that the Issuer may reject any subscription for any
reason, and we agree that any such rejection of a subscription
obtained by us or on our account shall be deemed not to be a sale made
by us or on our account. We acknowledge that subscribers checks shall
be made payable to the Issuer's escrow agent, Texas Commerce Bank
National Association. Subscriber's funds will be held in escrow and
invested in compliance with SEC Rule 15c-2-4. We agree to comply with
NASD Net Capital Rules pertaining to the handling of clients funds and
applicable notices to members, including 93-30 and 92-72.
5. We understand that we are not authorized to act as agent for the
Issuer in connection with any transaction, and we agree that we will
not act as agent or purport to do so. Any act to be performed by us
with respect to the offering of Notes pursuant hereto shall be as an
independent contractor.
6. Subject to the terms and conditions contained in this Agreement, we
will be paid for Notes sold for which we have acted as a Broker-Dealer
pursuant to this Agreement on a commission only basis, with such
commission to be _________% of the gross amount invested. We will bear
the cost of our own expenses incurred in the solicitation of sales.
Commissions will be payable within 10 days of the Issuer's receipt of
funds, except that no commissions or fees will be paid until the
minimum subscription amount of $100,000 is achieved. We acknowledge
that no commissions shall be due and owing to us unless and until all
of the terms and conditions set forth herein, in the Prospectus, and
in the subscription documents have been met. Further, we understand
that a minimum subscription amount of $100,000 has been established
and must be achieved before funds will be released to the Issuer.
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7. We hereby acknowledge receipt of the Prospectus for the offering of
Callable Asset-Backed Promissory Notes.
8. The Issuer will furnish us with a copy of any amendment or supplement
to the Prospectus.
9. We confirm that we are appropriately registered as a broker-dealer
with the Securities and Exchange Commission and in all states in which
we will conduct business and are a member in good standing of the
NASD. We also agree not to solicit subscriptions for the Notes that
will result in a violation of the securities laws of the United
States, or of any state, or any rule or regulation thereunder, or of
any rules of any securities exchange. We agree to comply with all
applicable NASD Rules of Fair Practice, including Article III,
Sections 8, 24, 25 and 36 thereof.
10. We represent that there is not now pending or threatened against us
any action or proceeding of which we have been advised, either in any
court of competent jurisdiction, before the Securities and Exchange
Commission or any state securities commission concerning activities as
a broker or dealer, nor have we been named as a "cause" in any such
action or proceeding.
11. In the event any action or proceeding of the type referred to in
Paragraph 10 above shall be instituted or threatened against us at any
time, or in the event there shall be filed by or against us in any
court pursuant to any federal, state, local or municipal statute a
petition in bankruptcy or insolvency or for reorganization or for the
appointment of a receiver or trustee of assets, or if we make an
assignment for the benefit of creditors, the Issuer shall have the
right on three days' written notice to terminate this Agreement.
12. Upon request, the Issuer will inform us as to the states in which the
Issuer has been advised by counsel that the Notes have been qualified
for sale under the respective state securities laws, but the Issuer
does not assume any responsibility or obligation as to our right to
sell the Notes in any state. We understand and agree that under no
circumstances will we engage in any activities hereunder in any
jurisdiction (a) in which the Issuer has not informed us that the
Notes are qualified for sale under the applicable securities laws, or
(b) in which we may not lawfully so engage.
13. We confirm that our commitment to use our best efforts to solicit
subscriptions for the Notes will not result in a violation of the
securities laws of the United States, including but not limited to the
Act or any rule or regulation thereunder, or the securities laws of
any state in which we will conduct business and the rules and
regulations thereunder, or of any rules of any securities exchange to
which we are subject or of any restriction imposed upon us by any such
exchange or governmental authority and agree to indemnify the Issuer
for any and all damages and liabilities resulting from the same.
14. We represent that in connection with the offering:
A. We will comply in all respects with 1) the provisions of
this Broker-Dealer Agreement, and 2) the Issuer's policies
and procedures for firms engaging in die solicitation of
sales of the Notes;
B. We will comply with any applicable limitations in the manner
of offering as required by the Act and applicable state
securities laws, including without limitation, the
requirements of SEC Rule 15c2-8 with respect to delivery of
prospectuses;
C. Prior to making any sale, we will have reasonable grounds to
believe, after making reasonable inquiry, that each
purchaser meets the requirements of the Act, the NASD and
applicable state securities laws as to the suitability of
the investment for such purchaser;
D. No owner, partner, director, or officer of our Broker-Dealer
firm has within the last five years been subject to any of
the following administrative or judicial actions (by the
Securities and Exchange Commission or any State Securities
Commission);
1. Registration Stop Order (Issuance of Securities);
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2. Securities related felony conviction;
3. Securities related administrative order;
4. Any administrative order involving fraud or
deceit;
5. Securities related injunction.
E. We have no current effective administrative order revoking a
securities exemptions or qualification; and,
F. We have not been suspended or expelled by the NASD.
G. We agree to indemnify and hold the Issuer, its officers,
directors and employees, harmless from any costs associated
with claims arising or alleged to arise out of a breach of
the foregoing representations.
15. Subject to the conditions set forth below, the Issuer agrees to
indemnify and hold us harmless, and each person, if any, who controls,
or is employed by, us within the meaning of Section 15 of the
Securities Act of 1933, as follows:
(1) Against any loss, liability, claim, damage and expense
arising out of (including but not limited to expenses
reasonably incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any
claim whatsoever based upon) any untrue or alleged untrue
statement of a material fact contained in the Prospectus (as
amended and supplemented), or the omission or alleged
omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and
(2) Against any loss, liability, claim, damage and expense to
the extent of the aggregate amount paid in settlement of any
litigation, commenced or threatened, or of any claim based
upon any untrue statement or omission or any alleged untrue
statement or omission of a material fact in the Prospectus,
as amended and supplemented (including but not limited to
expenses reasonably incurred in investigating, preparing or
defending against any such litigation or claim), if such
settlement is effected with the Issuer's written consent.
In no case shall the Issuer be liable with respect to claims made
against us unless the Issuer shall be notified, by letter or by
telegram confirmed by letter, of any action commenced against us
within a reasonable time after we shall have been served with a
summons or other legal process giving information as to the nature and
basis of the claim, but failure to so notify the Issuer shall not
relieve the Issuer from any liability which it shall have otherwise
than on account of this indemnity agreement. The Issuer shall be
entitled to participate at its own expense in the defense, or if it so
elects within a reasonable time after receipt of such notice, to
assume the defense of any suit brought to enforce any such claim, but
if it elects to assume the defense, such defense shall be conducted by
counsel chosen by it and satisfactory to it. If the Issuer elects to
assume the defense of any such suit and retain counsel, we shall bear
the fees and expenses of any additional counsel thereafter retained by
us.
16. This Agreement may be terminated by either party at any tine by
written notice to that effect sent to the other party at the address
shown in this Agreement. An attempt to assign any rights and
obligations under this Agreement shall constitute automatic
termination of this Agreement.
17. The representations and warranties set forth in this Agreement will
remain in full force and effect, regardless of any investigation made
by or on behalf of either of us and will survive termination of this
Agreement and the delivery of and payment for the Notes.
18. Any notice from the Issuer to us at the address set forth below shall
be deemed to have been duly given if mailed, or if communicated by
telegraph or telephone and subsequently confirmed in writing to us.
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19. This Agreement may be modified only by a writing signed by the parties
hereto.
20. We hereby further agree that in the event that a dispute arises
between the undersigned broker-dealer and the Issuer or any of its
officers, directors, employees, agents, attorneys or accountants,
arising out of, in connection with or as a result of the execution of
this Agreement or as a result of any Subscription Agreement tendered
by any subscriber to Notes, we hereby expressly agree that such
disputes shall be resolved through arbitration rather than litigation
and agree to submit such disputes for resolution to the NASD in
Dallas, Texas, within five (5) days after receiving a written request
from any of the aforesaid parties to do so. We understand that our
failure to submit any dispute to arbitration as requested may result
in the commencement of an arbitration proceeding against us. We
further agree that any hearing scheduled after an arbitration
proceeding is initiated by either we, the undersigned broker-dealer,
or any of the aforesaid parties, shall take place in Dallas County,
Texas. We acknowledge that the result of the arbitration proceeding
shall be final and binding on all of the parties to the proceeding,
and by agreeing to arbitration we are waiving our right to seek
remedies in Court.
We have indicated our confirmation of this Agreement by executing and delivering
it to the Issuer in duplicate. If accepted, the Issuer will execute this
Agreement, whereupon it shall constitute a binding contract between us.
Dated this ___ day of ____________________, 199___.
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Broker-Dealer (Please Print)
By:
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Signature
Phone #
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(Print Name)
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Address
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City, State, Zip Code
Copies of Investor Correspondence Commissions should be mailed to:
should be mailed to:
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at the above address at the above address
U.S. AUTOMOBILE ACCEPTANCE SNP-IV, INC.
By:
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Title:
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Date Accepted:
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