EXHIBIT 1.1
FORM OF DEALER-MANAGER AGREEMENT
150,000 SHARES OF LIMITED LIABILITY COMPANY INTERESTS
of
ICON INCOME FUND TEN, LLC
(a Delaware limited liability company)
DEALER-MANAGER AGREEMENT
_____________, 2003
ICON Securities Corp.
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Dear Sirs:
Reference is made to the enclosed prospectus, as amended at the time the
related registration statement becomes effective (the "Prospectus") relating to
the offering (the "Offering") by ICON Income Fund Ten, LLC, an equipment leasing
program in the form of a limited liability company ("the Company"), of limited
liability company interests in shares of $1,000 each (the "Shares"). The Shares
and the terms upon which they are offered are more fully described in the
Prospectus.
We are entering into this Agreement with you as exclusive managing sales
agent (the "Dealer-Manager") pursuant to which you are authorized to (1) select
and provide sales support to a group of securities broker-dealers (the "Selling
Dealers") which are members of the National Association of Securities Dealers,
Inc. ("NASD") and (2) to offer directly to the general public, in each case to
offer, on a best efforts basis, a total maximum offering of up to 150,000
Shares.
Each Selling Dealer selected by you is authorized by its selling dealer
agreement (the "Selling Dealer Agreement"), and you are hereby authorized, to
find purchasers for the Shares which satisfy the suitability standards set forth
in the Prospectus during the Offering Period (as defined below) and which are
acceptable to the Company. The date on which the offering shall terminate is the
earlier of (i) the last day of the twenty-four (24) month period which begins on
the Effective Date (as defined in the Prospectus) of the registration statement,
as amended at the time it becomes effective (the "Registration Statement") (with
the offering of Shares in certain states for more than 12 months subject to the
permission of the state securities commission of such respective states) or (ii)
the date on which all Shares available for sale are fully subscribed, unless the
Offering is earlier terminated (hereinafter called the "Termination Date"), with
notice to you by ICON Capital Corp., the manager of the Company (the "Manager").
The period between the Effective Date of the Registration Statement and the
Termination Date is hereinafter called the "Offering Period." Each date on which
any investor is admitted to the Company (thereby becoming a "Member") is
hereinafter called a "Closing Date."
This Agreement shall become effective (i) at 12:01 A.M., New York City
time, on the first full business day after the Effective Date, or (ii) upon the
release of the Shares for offering, whichever is earlier. The time of the
release of the Shares for offering is the publication after the Effective Date
of the first newspaper advertisement relating to the Shares or the time of the
first mailing of copies of the final Prospectus, whichever is earlier. Each of
us agrees to notify the other immediately after it shall have taken any action
by release or otherwise, whereby this Agreement shall have become effective.
This Agreement may be terminated by the Company at any time before it becomes
effective without liability to the Company or any Member thereof.
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The Company will accept subscriptions for the Shares subject to the
Company's right to terminate the Offering Period at any time without notice and
to reject any subscription in whole or in part, in its sole discretion. The
acceptance of subscriptions is further subject to the following terms and
conditions:
1. Appointment as Dealer-Manager. We hereby authorize you to act as the
Dealer-Manager during the Offering Period and, on a "best efforts" (and not
"firm underwriting") basis only, to offer Shares directly, and to enter into
Selling Dealer Agreements on behalf of the Company authorizing each such Selling
Dealer to offer, to potential investors which (a) satisfy the investor
suitability standards (i) set forth in the Prospectus as well as (ii) under
applicable state laws and (iii) the NASD Rules of Fair Practice and (b) are
acceptable to the Company (the "Eligible Investors"). As Dealer-Manager, you
will act as an independent contractor and not as our agent or as agent for the
Company in connection with your solicitation of subscriptions for Shares and
will therefore be responsible for assuring that each investor satisfies all such
requirements. You agree that you will not make representations or give
information which is not (x) contained in the Prospectus or in supplemental
sales literature specifically authorized for use in the manner described in
Section 5 of this Agreement or (y) consistent with the representations and
information contained therein.
2. Subscriptions for Shares. You shall (a) find Eligible Investors for the
Shares, (b) keep records of the basis for each determination by a member of, or
person associated with, your firm of an investor's suitability and (c) promptly
forward each fully completed and executed copy of the subscription agreement,
which shall be in the form of Exhibit C to the Prospectus (the "Subscription
Agreement"), as signed by each investor and countersigned by a supervisory
representative of your firm, together with the related subscription payment in
the form of a check made payable to "The Chase Manhattan Bank ICON Income Fund
Ten, LLC Escrow Account" to:
ICON Securities Corp.
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Each Subscription Agreement and related subscription payment shall be
forwarded by your firm to us at the foregoing address no later than noon of the
next business day after receipt from your customer by any member of, or person
associated with, your firm of such payment, unless such Subscription Agreement
and payment are first forwarded to another of your offices for internal
supervisory review (which shall take place within the aforementioned time
period), in which event such other office shall complete its review and forward
such Subscription Agreement and payment to the above address no later than noon
of the next business day after its receipt thereof. (Notwithstanding the
foregoing, any investor's check not properly completed as described above shall
be promptly returned to such investor not later than the next business day
following your receipt of such check). Each subscription so received by the
Manager will be subject to acceptance or rejection by it by the end of the next
business day. Each such subscription payment received by us and accepted by the
Manager will be transmitted, as soon as practicable, but in any event by the end
of the second business day following our receipt thereof, to The Chase Manhattan
Bank (the "Escrow Agent") for deposit in an interest-bearing bank account
insured by the Federal Deposit Insurance Corporation which shall be an escrow
account in the name of Escrow Agent pending the Initial Closing Date (as defined
below) and will be a segregated subscription account of the Company thereafter.
We undertake to promptly return directly to you for return to any of your
customers whose subscriptions are not accepted by the Manager, their
Subscription Agreements together with the related, uncashed subscription
payments within two business days of our receipt of same. Unless and until an
event requiring a refund occurs, an investor will have no right to withdraw his
subscription payments from escrow. The Manager has reserved the unconditional
right to refuse to accept, in whole or in part, any subscription and related
payment and to refuse to accept as a purchaser any investor for any reason
whatsoever or no reason.
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Unless subscriptions for at least 5,000 Shares are received and accepted
by the Manager on or before the Termination Date, the Company will promptly
refund all subscription payments received by it in full with interest earned
thereon, if any, and without deduction, and the Offering shall thereupon
terminate. Promptly after receiving and accepting subscriptions for 5,000 Shares
the Manager will notify the Escrow Agent that Schedule A to the Company's
operating agreement (the "Operating Agreement") has been amended to admit as
Members investors (other than those who are residents of the Commonwealth of
Pennsylvania, which requires that a minimum of 7,500 Shares must be sold before
such residents' subscription payment may be released from escrow) for whom
subscriptions have been accepted, and the Escrow Agent is to pay over promptly
to the Company the amount of all of such investors' subscription payments then
on deposit and shall distribute interest earned on each subscription payment to
the investors entitled to interest named on his subscription. The date on which
such admission of Members shall occur is hereinafter called the "Initial Closing
Date." Under regulations of the Commonwealth of Pennsylvania, until
subscriptions for 5% (or $7,500,000) of the maximum offering have been received,
the subscription payments of Pennsylvania residents must be held in escrow.
After subscriptions for the residents of all jurisdictions including
Pennsylvania have been received, all remaining subscriptions then being held in
escrow will be released from escrow upon the next Closing Date and the
applicable investors will be admitted to the Company as Members (in the manner
described in the preceding sentence). Following the Initial Closing Date, the
Manager will continue to accept subscriptions for additional Shares during the
remainder of the Offering Period and to admit to the Company as Members
investors whose subscriptions are accepted. Such admissions will take place from
time to time as shall be determined by the Manager, with the anticipation that
Closing Dates subsequent to the Initial Closing Date will occur as frequently as
daily.
In connection with the Offering, the Company will pay:
(a) sales commissions in an amount equal to 8.0% of the total
purchase price of all Shares sold through your efforts (the "Sales
Commissions"), except for Share sales to (a) officers, employees and
securities representatives of the Manager, its affiliates and each Selling
Dealer (the "Affiliated Members"), and (b) investors by registered
investment advisers affiliated with a Selling Dealer who do not charge a
commission in connection with an investment in Shares (the "RIA Members"),
as to which no Sales Commissions are payable. Affiliated Members and RIA
Members may purchase Shares for a net share price of $920.00 per Share.
Purchases of Shares by Affiliated Members and RIA Members shall be for
investment purposes only and not with a view toward resale and shall be
limited to a maximum of 10% of the total shares sold.
(b) an underwriting fee (the "Underwriting Fee") equal to $20.00 for
every Share actually sold by you, your registered representatives and
registered representatives of all Selling Dealers for your services in
supervising the sale of Shares and to reimburse you, on a non-accountable
basis, for wholesaling fees and expenses.
The total marketing compensation to be paid to you in connection with the
Offering, including Sales Commissions and Underwriting Fees shall not exceed
10.0% of the gross offering proceeds from sale of Shares and the total of such
Sales Commissions, Underwriting Fees and reimbursable due diligence fees and
expenses (if any), shall not exceed 10.5% of the gross offering proceeds from
sale of Shares.
All such compensation will be paid by the Company within 30 days after
each Closing Date in respect of subscriptions submitted by investors who were
admitted to the Company on such Closing Date. In addition, you will be entitled
to reimbursement, on a fully accountable basis, for bona fide due diligence fees
and expenses actually incurred by your firm in an amount not exceeding the
lesser of (a) 1/2 of 1% of the gross offering proceeds or (b) the maximum amount
permitted to be paid under the NASD's Rules of Fair Practice (the "NASD Rules").
Notwithstanding the foregoing, no compensation
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will be paid in respect of subscriptions (or portions thereof) which have been
rejected by the Manager, or in the event the minimum offering for 5,000 Shares
is not successfully completed.
Sales Commissions with respect to Shares actually sold by you or your
registered representatives and Underwriting Fees with respect to all Shares sold
(by you or by any Selling Dealers) will be due and payable to you within 30 days
of each Closing Date on which the purchasers of such Shares are admitted as
Members and, to the extent that such commissions are advanced (which they shall
be only for bona fide transactions as referenced in Rule 2810 of the NASD's
Conduct Rules) prior to a Closing Date (with respect to sales of Shares actually
sold by you), such payments shall be deemed advances which shall be returnable
by you, in the event that, for any reason, such Closing Date does not occur.
"Qualified Shares" shall mean only those Shares for which the particular state
in which the Shares are sold does not (i) require that more than 5,000 Shares be
sold before investors from such state may be admitted as Members or (ii)
prohibit the payment of commissions with respect to sales of such Shares,
provided, however, when the aggregate number of Shares sold exceeds the
requirements of the particular state with respect to clause (i) and/or (ii)
above, such Shares shall become Qualified Shares.
3. Termination of Agreement. The provisions of this Agreement relating to
the Offering shall terminate as to the Company upon the completion of the
Offering Period, and may be terminated by you or us as specified in Section 10
of this Agreement, subject to the survival of all provisions hereof which by
their nature are intended to survive termination of this Agreement.
4. Limitations on Payments. You agree that neither you nor any salesperson
under your control shall directly or indirectly pay or award any finder's fees,
commissions or other compensation to any person engaged by a potential investor
for investment advice as an inducement to such advisor to advise the purchase of
Shares; provided, however, that this provision shall not prohibit the normal
sales commission payable to any properly licensed person for selling Shares. In
addition, you agree not to receive any rebates or give-up or participate in any
reciprocal business arrangements (other than the securities distribution
arrangements specified in the Prospectus) which would violate any restriction on
the Company contained in the Prospectus.
5. Supplementary Sales Material. You agree that you will not use any
supplementary sales materials other than the Prospectus (including, inter alia
transmittal letters, underwriting memoranda, summary descriptions, graphics,
supplemental exhibits, media advertising, charts, pictures, written scripts or
outlines), whether prepared to solicit sales to prospective investors or for the
exclusive use of you and your personnel, except as supplied by the Company and
described under the caption "Supplemental Sales Literature" in the Prospectus,
or otherwise specifically described in a written advice from the Company
authorizing the type and manner of use. The use of any such other supplementary
sales material is expressly prohibited except to the extent specified in any
such written advice.
6. Right To Sell. Notwithstanding any information furnished or any action
taken by us in that connection, we shall have no obligation or liability with
respect to the registration or qualification of the Shares in any jurisdiction
or the qualification or right of you or any Selling Dealer to sell or advertise
them therein.
7. Limited Obligations Nothing herein contained shall constitute a
partnership, association or other separate entity or partners between or among
you, and/or any Selling Dealer and the Company, or with each other, but you
shall be responsible for your share of any liability or expense based on any
claim to the contrary. We shall not be under any liability to you, except for
obligations expressly assumed in this Agreement and any liabilities under the
Securities Act of 1933, as amended (the "Act"), and no other obligations on our
part shall be implied hereby or inferred herefrom.
(a) Notwithstanding anything to the contrary provided hereinbelow,
the Company will indemnify and hold you harmless in the manner and solely
to the extent specified in Section 6 of the Operating Agreement (the terms
of which are incorporated herein by reference) against
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any losses (including any claims of any Selling Dealers), damages or
liabilities, joint or several, to which you may become subject as a result
of entering into, or performing your duties under this Agreement.
(b) You agree to indemnify and hold harmless the Manager, in its
capacity as manager of the Company, and the Company against any losses,
claims, damages or liabilities to which the Manager and the Company may
become subject under the Act 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 any
material fact contained in the Registration Statement, any preliminary
prospectus, the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or the 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 in each case to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in the Registration Statement or any preliminary prospectus or the
Prospectus or any amendment or supplement in reliance upon and in
conformity with written information furnished to the Manager by you
expressly for use therein; and to reimburse the Company in connection with
investigating or defending any such action or claims.
The indemnity agreement in this paragraph (b) shall be in addition
to any liability which you may otherwise have and shall extend, upon the
same terms and conditions, to each partner of the Company, and to each
person, if any, who controls the Company within the meaning of the Act.
(c) Promptly after receipt by an indemnified party under paragraph
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such paragraph, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under
such paragraph. In case any such action shall be brought against any
indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate in, and to the extent that it shall wish, jointly with any
other indemnifying party, similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such paragraph for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in subsection
(a) of this Section 7 is unavailable in accordance with its terms, the
Company and you shall contribute to the aggregate losses, claims, damages
and liabilities of the nature contemplated by said indemnity agreement
incurred by the Company and you (or any controlling person), in such
proportions as is appropriate to reflect the relative benefits received by
the Company on the one hand and you on the other from the Offering;
provided, however, that if such allocation is not permitted by applicable
law or if the indemnified party failed to receive the notice required
under subsection (a) of this Section 7 or is not entitled to receive the
indemnification provided for in subsection (a) of this Section 7 because
of the second provision thereof, then the relative fault of the Company
and you in connection with the statement or omissions which resulted in
such losses, claims, damages and liabilities and other relevant equitable
considerations will be considered together with such relative benefits.
The relative benefits received by the Company on the one hand and you on
the other shall be deemed to be in the same proportion as the total
proceeds from the Offering (net of Underwriting
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Fees and Sales Commissions but before deducting the organization and
offering expense allowance) received by the Company bears to the
Underwriting Fees and Sales Commissions received by you, as set forth in
the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether in the case of an
untrue statement or alleged untrue statement of a material fact, such
statement or omission relates to information supplied by the Company or
you and the party's relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission
including, with respect to you, the extent to which such losses, claims,
damages or liabilities (or actions in respect thereof) with respect to any
preliminary prospectus result from the fact that you sold Shares to an
investor to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) or of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference) if the
Company has complied with Section 5 hereof. The amount paid or payable by
the indemnified party as a result of the losses, claims, damages or
liabilities referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending against or
appearing as a third party witness in any such action or claim.
Notwithstanding the provisions of this subsection (d), you shall not be
required to contribute any amount in excess of the amount by which the
total price at which the Shares purchased by you were offered to the
public exceeds the amount of any damages which you have otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation within the meaning of Section 11(f) of the Act shall be
entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation. In addition, certain states may also impose
limitations or indemnifications given or received in a public offering.
For purposes of this subsection (d), each person, if any, who controls you
within the meaning of Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") shall
have the same rights to contribution as you shall have.
8. Representations, Warranties and Covenants of Dealer-Manager.
(a) Qualification of Dealer-Manager and its Representatives. You
represent, warrant and covenant that you are, and during the Offering
Period will continue to be, (i) a member in good standing of the NASD and
(ii) registered as a securities broker-dealer in those jurisdictions
wherein members of, or persons associated with, your firm will offer or
sell the Shares. You also represent, warrant and covenant that, during the
Offering Period, you will only permit members of, or persons associated
with, your firm to offer or sell Shares if such persons are duly
registered or licensed to sell direct participation program investments
by, and in good standing with, the NASD and those jurisdictions wherein
they will offer or sell Shares. You hereby certify that neither your firm
nor any member of your firm has been subject to a fine, consent decree or
suspension of your or their licenses within the last three (3) years, for
violation of federal or state securities or regulations. You also hereby
certify that you will promptly advise the President of the Manager of any
civil or administrative proceedings during the Offering Period involving
alleged violations of such laws or regulations.
(b) Investor Suitability and Minimum Investment. You further
represent, warrant and covenant that no member of, or person associated
with your firm, shall offer or sell Shares in any jurisdiction except to
investors who satisfy the investor suitability and minimum investment
requirements under the applicable provisions of the Prospectus or the laws
of such jurisdiction (if they are more restrictive). You hereby
acknowledge your firm's obligations pursuant to NASD Rules, in general,
and NASD Conduct Rule 2810, in particular. Specifically, you agree to
ensure that, in recommending the purchase, sale or exchange of Shares to
an investor, each member of, or person associated with, your firm shall
have reasonable grounds (as required by NASD Conduct Rule 2810) to
believe, on the basis of information obtained from the investor concerning
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his investment objectives, other investments, financial situation and
needs, and any other information known to such member of, or person
associated with, your firm, that (i) the investor is or will be in a
financial position appropriate to enable him to realize to a significant
extent the benefits described in the Prospectus, including the tax
benefits to the extent they are a significant aspect of the Company; (ii)
the investor has a fair market net worth sufficient to sustain the risks
inherent in an investment in Shares in the amount proposed, including
loss, and lack of liquidity of, of such investment; and (iii) an
investment in Shares is otherwise suitable for such investor. You further
represent, warrant and covenant that you will: (x) require each member of,
or person associated with your firm, to make diligent inquiry as to the
suitability and appropriateness of an investment in Shares from each
proposed investor, (y) retain in your records for a period equal to the
longer of (A) six years from the date of the applicable sale of Shares or
(B) five years from the end of the Offering Period, and (z) make available
to us and the Company, upon request (and upon your firm's receipt of an
appropriate document subpoena from one of the following, to
representatives of the Securities and Exchange Commission ("SEC"), NASD
and applicable state securities administrators) documents disclosing the
basis upon which the determination as to suitability was reached as to
each purchaser of Shares pursuant to a subscription solicited by your
firm, whether such records relate to accounts which have been closed,
accounts which are currently maintained, or accounts hereafter
established. You shall not purchase any Shares for a discretionary account
without obtaining the prior written approval of your customer and his
signature on a Subscription Agreement.
(c) Due Diligence: Adequate Disclosure. By signing below and signing
each Subscription Agreement, you hereby acknowledge (or reaffirm, in the
latter case) that, prior to entering into this Agreement, your firm
satisfied itself that it has reasonable grounds to believe, based on
information and other relevant materials made available to you by the
Company, that all material facts are adequately and accurately disclosed
and provide a basis for evaluation of an investment in the Shares (as is
provided in NASD Conduct Rule 2810). In determining the adequacy of the
disclosed facts you shall obtain information on material facts relating at
a minimum to the following, if relevant in view of the nature of the
Company: (i) items of compensation; (ii) physical properties; (iii) tax
aspects; (iv) financial stability and experience of the Manager; (v) the
Company's conflicts and risk factors and (vi) appraisals and other
pertinent reports. You further acknowledge that you did not, and may not,
rely upon the investigation conducted by us in our capacity as
Dealer-Manager (because of our affiliation with the Manager) or by any
other Selling Dealers, unless in the latter case all of the conditions set
forth in NASD Conduct Rule 2810 have been met.
(d) Compliance with the NASD Rules of Fair Practice. You also hereby
agree that you will require each member of, or person associated with,
your firm to inform any prospective purchaser of Shares, prior to his
subscription for Shares, of all pertinent facts relating to the liquidity
and marketability of an investment in Shares during the term of the
investment (as provided in NASD Conduct Rule 2810). You also hereby agree
to fully comply with all pertinent sections of Article III of the NASD
Rules, including, without limitation, Sections 8, 24 and 36 thereof.
(e) Record-Keeping and Disclosure. You further agree to keep such
records with respect to each investor, his suitability and the amount of
Shares sold and retain such records for such period of time as may be
required by the SEC, any state securities commission, the NASD or by the
Company. You agree to obtain and to forward to the Company any
representation letters or related documents, if any, as are set forth in
the Subscription Instructions in Exhibit C to the Prospectus.
(f) Delivery of the Prospectus in Connection with Sale of Shares.
You hereby represent, covenant and agree that no representative of your
firm shall
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sell, and your firm shall not endorse and forward any Subscription
Agreement to signify the completion of a subscription for, any Shares
unless, in connection therewith, the proposed purchaser of such Shares has
received a current copy of the Prospectus at or prior to the time that
such person has signed his Subscription Agreement. Your firm acknowledges
and agrees that such proposed purchaser shall not be admitted to the
Company and Shares issued until the later of (a) the next succeeding
Closing Date or (b) five business days after the date such proposed
purchaser received a copy of the Prospectus (which shall be determined by
the Manager by the date on which such proposed purchaser signed the
Subscription Agreement).
(g) Compliance with Rule 15c2-8 of the Exchange Act. You hereby (a)
represent that neither you nor any person associated with your firm
solicited customers' orders for Shares prior to the Effective Date; (b)
represent and agree to take all reasonable steps to make available a copy
of the final Prospectus relating to the Shares to each person associated
with your firm who is expected, after the Effective Date, to solicit
customers orders for Shares prior to the making of any such solicitation
by such associated persons; (c) agree to take reasonable steps, as
managing underwriter of this Offering, to furnish each Selling Dealer with
sufficient copies, as requested by them, of the final Prospectus to enable
them to comply with paragraphs (b), (c), (d) and (e) of Rule 15c2-8 of the
Exchange Act and the prospectus delivery requirements of Section 5(b)(l)
and (2) of the Act; and (d) agree that neither you, nor any person
associated with your firm, will furnish Prospectuses to any person in any
state (e.g. in any state (i) listed as not cleared on the "Blue-Sky
Survey" by the general counsel of the Dealer-Manager or (ii) in which your
firm or any person associated with your firm who solicits offers to buy or
offers to sell Shares is not currently registered); provided, however,
that this provision is not to be construed to relieve you from complying
with the requirements of Section 5(b)(l) and (2) of the Act. You hereby
acknowledge that Prospectuses shall not be furnished by you or any person
associated with your firm to any prospective investor while the
Registration Statement is subject to an examination, proceeding, or stop
order pursuant to Section 8 of the Act.
9. Representations, Warranties and Covenants of the Company.
(a) The Registration Statement, including a form of the Prospectus
and one or more amendments thereto with respect to the Shares has been (i)
prepared by the Company in conformity with the requirements of the Act and
the rules and regulations (the "Rules and Regulations") of the SEC
thereunder and (ii) filed with the SEC under the Act. Copies of the
Registration Statement and each amendment heretofore filed or proposed to
be filed (and of each related preliminary prospectus) have been delivered
to you.
(b) The SEC has not issued any order preventing or suspending the
use of any preliminary prospectus. The Registration Statement and the
Prospectus and any further amendments or supplements thereto will, when
they become effective, conform in all material respects to the
requirements of the Act and the Rules and Regulations of the SEC
thereunder and will not contain any untrue statement of a material fact or
omit to state any 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; provided, however, that the Company makes
no representation or warranty as to statements or omissions made in
reliance upon and in conformity with written information furnished to the
Company by you expressly for use therein.
(c) The Manager has been duly incorporated in the State of
Connecticut and is validly existing and in good standing under the laws of
the State of Connecticut with power and authority (corporate and other) to
conduct its business and own its properties as described in the
Prospectus.
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(d) The Company has been duly organized and is validly existing and
in good standing under the laws of the State of Delaware with power and
authority to conduct its business as described in the Prospectus.
(e) On each Closing Date, the Shares will conform to all statements
with regard thereto contained in the Prospectus, and the Company will have
the authorized and issued capitalization as set forth in the Prospectus.
(f) Except as reflected in or contemplated by the Registration
Statement or the Prospectus, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any material adverse change in the condition of the
Company or the Manager, financial or otherwise, or any transactions
entered into by the Company or the Manager, other than transactions in the
ordinary course of business, which are not required to be disclosed in the
Registration Statement or the Prospectus.
(g) The respective financial statements contained in the
Registration Statement and the Prospectus fairly present the financial
condition of the Company and the Manager as of the dates specified; and
such financial statements have been prepared in accordance with generally
accepted accounting principles consistently maintained throughout the
periods involved; and ▇▇▇▇ & Company, LLP and KPMG LLP, who have certified
the financial statements of the Company and the Manager, respectively, are
independent public accountants as required by the Act and the Rules and
Regulations.
(h) No consent, approval, authorization or other order of any
governmental authority is required in connection with the execution or
delivery by the Company of this Agreement or the issuance and sale by the
Company of the Shares, except such as may be required under the Act or
state securities laws.
(i) There are no actions, suits or proceedings pending, or to the
knowledge of the Company, threatened against the Company, the Manager or
any of their property, at law or in equity or before or by any federal or
state commission, regulatory body or administrative agency or other
governmental body, domestic or foreign, in which any adverse decision
might have a materially adverse effect on the business or property of the
Company or the Manager.
(j) The execution and delivery of this Agreement, the consummation
of the transactions herein contemplated and compliance with the terms of
this Agreement by the Company will not conflict with or constitute a
default under any charter, by-law, indenture, mortgage, deed of trust,
lease or other agreement or instrument to which the Company or the Manager
is a party, or any law, order, rule or regulation, writ, injunction or
decree of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over the Company or the Manager or any of
their property, except to the extent that the enforceability of the
indemnity and/or contribution provisions contained in Section 7 of this
Agreement may be limited under the applicable securities laws and subject
to the provisions and application of any insolvency, bankruptcy or similar
laws for
(k) The Company has full legal right, power and authority to enter
into this Agreement and to perform the transactions contemplated hereby,
except to the extent that the enforceability of the indemnity and/or
contribution provisions contained in Section 7 of this Agreement may be
limited under applicable securities laws.
(l) At the time of the delivery of the Shares, the Shares will have
been duly authorized and validly issued, and upon payment therefor, will
be fully paid and non-assessable and will conform to the description
thereof contained in the Prospectus.
DMA - Page 9
(m) There are no contracts or other documents which are required to
be filed as exhibits as to the Registration Statement which have not been
so filed.
10. Notice of Termination. This Agreement may be terminated by you or by
us by giving written, cable or telex notice 10 days in advance of your or our
intention to terminate; provided, however, that any rights to receive
commissions in respect of sales of Shares made prior to such termination and any
rights to indemnification or contribution hereunder, and all representations,
covenants and agreements contained in this Agreement which, by their terms,
expire or will need to be performed after the termination date of this Agreement
(including, but not limited to, the suitability record retention and disclosure
covenants contained in Section 8(e) above), shall survive such termination.
11. Governing Law. This Agreement is being delivered in the State of New
York and shall be construed and enforced in accordance with and governed by the
laws of such State.
Please acknowledge acceptance of the terms hereof by signing the two
enclosed copies of this letter and returning the same to us, whereupon this
letter and your acceptance hereof shall constitute a binding agreement between
us as of the date first above written. We will then supply to you for your files
one of such copies signed by the Company and the Dealer-Manager.
Company:
ICON Income Fund Ten, LLC
By: ICON Capital Corp., its Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, President
Dealer-Manager:
ICON Securities Corp.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
DMA - Page 10
Jurisdictions in which Dealer-Manager is Qualified
(_) Alabama (_) Kentucky (_) North Dakota
(_) Alaska (_) Louisiana (_) Ohio
(_) Arizona (_) Maine (_) Oklahoma
(_) Arkansas (_) Maryland (_) Puerto Rico
(_) California (_) Massachusetts (_) Rhode Island
(_) Colorado (_) Michigan (_) South Carolina
(_) Connecticut (_) Minnesota (_) South Dakota
(_) Delaware (_) Mississippi (_) Tennessee
(_) District of Columbia (_) Missouri (_) Texas
(_) Florida (_) Montana (_) Utah
(_) Georgia (_) Nebraska (_) Vermont
(_) Hawaii (_) Nevada (_) Virginia
(_) Idaho (_) New Hampshire (_) Washington
(_) Illinois (_) New Jersey (_) West Virginia
(_) Indiana (_) New Mexico (_) Wisconsin
(_) Iowa (_) New York (_) Wyoming
(_) Kansas (_) North Carolina
Dealer-Manager:
ICON Securities Corp.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
DMA - Page 11