EXHIBIT 1.1
FORM OF
DEALER MANAGER AGREEMENT
1,500,000 UNITS OF LIMITED PARTNERSHIP INTEREST
of
ICON Income Fund Eight
(a Delaware Limited Partnership)
DEALER-MANAGER AGREEMENT
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______________, 1998
ICON Securities Corp.
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Dear Sirs:
Reference is made to the enclosed Prospectus (the "Prospectus") relating to
the offering by ICON Income Fund Eight, an equipment leasing program consisting
of two limited partnerships, ICON Income Fund Eight A L.P., a Delaware limited
partnership, ("ICON Eight A") and ICON Income Fund Eight B L.P., a Delaware
limited partnership, ("ICON Eight B")(collectively, "the Partnerships", or,
individually, "a Partnership"), of Limited Partnership Interests in units of
$100 each (the "Units"). The Units 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 ("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. (the "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 1,500,000
units of limited partnership interest in the Partnership (the "Units").
Each Selling Dealer selected by you is authorized by its Selling Dealer
Agreement, and you are hereby authorized, to find purchasers for the Units which
satisfy the suitability standards set forth in the Prospectus during the
Offering Period (as defined below) and which are acceptable to the Partnership.
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 (with the offering of
Units 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 Units available for sale are fully subscribed, unless the Offering is
earlier terminated (with notice to you) by the General Partner (hereinafter
called the "Termination Date"). 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 Limited Partner (other than the
Original Limited Partner) is admitted to the Partnership 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 Units for offering, whichever is earlier. The time of the release
of the Units for offering is the publication after the Effective Date of the
first newspaper advertisement relating to the Units 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 Partnership at any time before it becomes
effective without liability to the Partnership or any Partner thereof (as
defined therein).
The Partnership will accept subscriptions for the Units subject to the
Partnership'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 a
Dealer-Manager during the Offering Period and, on a "best efforts" (and not
"firm underwriting") basis only, to offer Units directly, and to enter into
Selling Dealer Agreements on behalf of the Partnership 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 Partnership ("Eligible Investors"). As Dealer Manager, you
will act as an independent contractor and not as our agent or as agent for the
Partnership in connection with your solicitation of subscriptions for Units and
will therefore be responsible for assuring that each subscriber 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 Units. You shall (a) find Eligible Investors for the
Units, (b) keep records of the basis for each determination by a member of, or
person associated with, your firm of a subscriber's suitability and (c) promptly
forward each fully completed and executed copy of the Subscription Agreement, as
signed by each subscriber and countersigned by a supervisory representative of
your firm, together with the related subscription payment (in the form of a
check made payable to " ICON Income Fund Eight Escrow Account" pending receipt
and acceptance by the General Partner of subscriptions for 37,500 Units and
thereafter in the form of a check made payable to "ICON Income Fund Eight
Subscription Account") to:
ICON Capital 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
General Partner will 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 General Partner 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 Bank of New York (NJ), White Plains, New York (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 and will be a segregated subscription
account of the Partnership thereafter. We undertake to promptly return directly
to you for return to any of your customers whose subscriptions are not accepted
by the General Partner, 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, a subscriber will have no
right to withdraw his subscription payments from escrow. The General Partner 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
person for any reason whatsoever or no reason.
Unless subscriptions for at least 12,000 Units (excluding ten (10) Units
originally subscribed for by the Original Limited Partner) are received and
accepted by the General Partner on or before the Termination Date, the
Partnership 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 12,000 Units (excluding the above referenced ten (10) Units
owned by the Original Limited Partner) the General Partner will notify the
Escrow Agent that Schedule A to the Partnership Agreement has been amended to
admit as Limited Partners subscribers (other than those who are residents of the
Commonwealth of Pennsylvania, which requires that a minimum of 37,500 Units 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 Partnership
the amount of all of such subscribers' subscription payments then on deposit and
shall distribute interest earned on each subscription payment to the subscribers
entitled to interest earned on his subscription. The date on which such
admission of Limited Partners shall occur is hereinafter called the "Initial
Closing Date." Under regulations of the the Commonwealth of Pennsylvania, until
subscriptions for 5% (or $3,750,000) 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 subscribers admitted to the Partnership as Limited Partners (in the
manner described in the preceding sentence). Following the Initial Closing Date,
the General Partner will continue to accept subscriptions for additional Units
during the remainder of the Offering Period and to admit to the Partnership as
Limited Partners subscribers whose subscriptions are accepted. Such admissions
will take place from time to time as shall be determined by the General Partner,
with the anticipation that Closings subsequent to the Initial Closing will occur
as frequently as daily.
The Partnership, by its acceptance of this Agreement, agrees to pay you the
following compensation:
a) Sales Commissions in an amount equal to 8.0% of the total purchase price
of all Units sold through your efforts, except for the following types of
Unit sales to officers, employees and securities representatives of the
General Partner, its Affiliates and each Selling Dealer ("Affiliated Limited
Partners") may purchase Units for a Net Unit Price of $92.00 per Unit and
92% of $.01 for each 1/10,000th of a Unit purchased (rounded to the next
highest $.01) as to which no Sales Commissions are payable. Purchases of
Units by Affiliated Limited Partners shall be for investment purposes only
and not with a view toward resale.
(b) an Underwriting Fee equal to 2.0% of the Gross Unit Price of every Unit
actually sold by you, your registered representatives and registered
representatives of all Selling Dealers for your services in supervising the
sale of Units and to reimburse you, on a non-accountable basis, for
wholesaling fees and expenses of the Sponsor and
(c) 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 Rules of Fair Practice.
The total marketing compensation to be paid to you in connection with the
offering for sale of Units of the Partnership, including Sales Commissions
(equal to 8.0% of the Gross Offering Proceeds of all Units sold by you or your
representatives) and Underwriting Fees (equal to 2.0% of the Gross Offering
Proceeds of all Units sold) shall not exceed 10.0% of the Gross Offering
Proceeds from sale of Units 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 Units.
All such compensation will be paid by the Partnership within 30 days after
each Closing Date in respect of subscriptions submitted by investors who were
admitted to the Partnership 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 National Association of Securities
Dealers, Inc. (the "NASD")'s Rules of Fair Practice (the "NASD Rules").
Notwithstanding the foregoing, no compensation will be paid in respect of
subscriptions (or portions thereof) which have been rejected by the General
Partner, or in the event the Minimum Offering for 12,000 Units is not
successfully completed.
Sales Commissions with respect to Units actually sold by you or your
registered representatives and Underwriting Fees with respect to all Units sold
(by you or by ally Selling Dealers) will be due and payable to you within 30
days of each Closing Date (as hereinafter defined) on which the purchasers of
such Units are admitted as Limited Partners and, to the extent that such
commissions
are advanced (which they shall be only for bona fide transactions as referenced
in Section 5(b)(3) of Appendix F to Section 34, Article III, of the NASD's
Rules) prior to a Closing Date (with respect to sales of Units 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
Units" shall mean only those Units for which the particular state in which the
Units are sold does not (i) require that more than 12,000 Units be sold before
subscribers from such state may be admitted as Limited Partners or (ii) prohibit
the payment of commissions with respect to sales of such Units, provided,
however, when the aggregate number of Units sold exceeds the requirements of the
particular state with respect to (i) and/or (ii) above, such Units shall become
Qualified Units.
3. Termination of Agreement. The provision of this Agreement relating to the
offering of the Units shall terminate as to the Partnership 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
Units; provided, however, that this provision shall not prohibit the normal
sales commission payable to any properly licensed person for selling Units. 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 Partnership contained in the Prospectus.
5. Supplementary Sales Material. You agree that you will not use any
supplementary sales material 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 Partnership
and described under the caption "Supplemental Literature" in the Prospectus, or
otherwise specifically described in a written advice from the Partnership
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 Units 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 Partnership, 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 (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
Partnership will indemnify and hold you harmless in the manner and solely to
the extent specified in Section 6 of the Partnership Agreement (the terms of
which are incorporated herein by reference) against 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 ICON Capital Corp., in its
capacity as General Partner of the Partnership ("ICON") and the Partnership
against any losses, claims, damages or liabilities to which ICON and the
Partnership 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 ICON by you expressly for use therein;
and to reimburse the Partnership 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 Partnership, and to each person, if
any, who controls the Partnership 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 6 is unavailable in accordance with its terms, the
Partnership and you shall contribute to the aggregate losses, claims,
damages and liabilities of the nature contemplated by said indemnity
agreement incurred by the Partnership and you (or any controlling person),
in such proportions as is appropriate to reflect the relative benefits
received by the Partnership on the one hand and you on the other from the
offering of the Units; 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 6 or is not
entitled to receive the indemnification provided for in subsection (a) of
this Section 6 because of the second provision thereof, then the relative
fault of the Partnership 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 Partnership 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 Fees
and Sales Commissions but before deducting the O & O Expense Allowance or
Reserves) received by the Partnership 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 Partnership 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 Units to a person 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 Partnership 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 Units 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 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
Units. 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 Units 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
Units. You hereby certify that neither your firm nor any member of your firm
has been subject to fine, a 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 ICON Capital Corp. 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 Units 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 Appendix F of such Rules,
in particular. Specifically, you agree to ensure that, in recommending the
purchase, sale or exchange of Units to an investor, each member of, or
person associated with, your firm shall have reasonable grounds (as required
by Section 3(b) of Appendix F) to believe, on the basis of information
obtained from the investor concerning 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 Partnership; (ii) the investor has a fair market net worth sufficient to
sustain the risks inherent in an investment in Units in the amount proposed,
including loss, and lack of liquidity of, of such investment; and (iii) an
investment in Units 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 Units 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 Units or (B) five years
from the end of the Offering Period (or such longer period as is provided in
Section 8 hereof), and (z) make available to us and the Partnership, upon
request, (and upon your firm's receipt of an appropriate document subpoena
from one of the following, to representatives of the 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 Units 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 Units 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 Partnership, that all
material facts are adequately and accurately disclosed and provide a basis
for evaluation of an investment in the Units (as is provided in Sections
4(a), (b) and (c) of Appendix F). 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
Partnership: (i) items of compensation; (ii) physical properties; (iii) tax
aspects; (iv) financial stability and experience of the General Partner; (v)
the Partnership'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 General Partner) or by
any other Selling Dealers, unless in the latter case all of the conditions
set forth in Section 4(c) of Appendix F 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 Units, prior to his subscription for
Units, of all pertinent facts relating to the liquidity and marketability of
an investment in Units during the term of the investment (as provided in
Section 4(d) of Appendix F). 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 Units sold
and retain such records for such period of time as may be required by the
U.S. Securities and Exchange Commission (the "Commission"), any state
securities commission, the NASD or by the Partnership. You agree to obtain
and to forward to the Partnership 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 Units. You
hereby represent, covenant and agree that no representative of your firm
shall sell, and your firm shall not endorse and forward any Subscription
Agreement to signify the completion of a subscription for, any Units unless,
in connection therewith, the proposed subscriber for such Units has received
a current copy of the Prospectus at or prior to the time that such person
has signed his or her Subscription Agreement. Your firm acknowledges and
agrees that such proposed subscriber shall not be admitted to the
Partnership and Units issued until the later of (a) the next succeeding
Closing Date or (b) five business days after the date such proposed
subscriber received a copy of the Prospectus (which shall be determined by
the General Partner by the date on which such proposed subscriber signed the
Subscription Agreement).
(g) Compliance with SEC Reg. 240.15c2-8 You hereby (a) represent that
neither you nor any person associated with your firm solicited customers'
orders for Units 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 such securities to each person associated with your firm who is
expected, after the Effective Date, to solicit customers orders for Units
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 the final Prospectus to enable them to comply with paragraphs (b), (c),
(d) and (e) of SEC Reg. 240.15c2-8 and the prospectus delivery requirements
of Section 5(b)(1) and (2) of the Securities Act of 1933; 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 of the Sponsor or (ii) in which your firm or
any person associated with your firm who solicits offers to buy or offers to
sell Units is not currently registered); provided, however, that this
provisions is not to be construed to relieve you from complying with the
requirements of Section 5(b)(1) and (2) of the Securities Act of 1933. You
hereby acknowledge that Prospectuses shall not be furnished by you or any
person associated with your firm to any prospective customer while the
registration statement is subject to an examination, proceeding, or stop
order pursuant to Section 8 of the Securities Act of 1933.
9. Representations, Warranties and Covenants of the Partnership.
(a) A registration statement, including a form of the prospectus and one
or more amendments thereto with respect to the Units has been (i) prepared
by the Partnership in conformity with the requirements of the Act and the
rules and regulations (the "Rules and Regulations") of the Commission
thereunder and (ii) filed with the Commission 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. The registration statement and the prospectus, as amended at the time
the registration statement becomes effective (the "Effective Date"), are
herein respectively called the "Registration Statement" and "Prospectus,"
except that if the prospectus first filed by the Partnership pursuant to
Rule 424(b) under the Act shall differ from the Prospectus, the term
"Prospectus" shall also include the Prospectus filed pursuant to Rule
424(b).
(b) The Commission 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 Commission 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 Partnership makes no
representation or warranty as to statements or omissions made in reliance
upon and in conformity with written information furnished to the Partnership
by you expressly for use therein.
(c) ICON Capital Corp., the General Partner of the Partnership ("ICON"),
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.
(d) The Partnership 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 (as hereinafter defined), the Units will conform
to all statements with regard thereto contained in the Prospectus, and the
Partnership 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 Partnership or ICON,
financial or otherwise, or any transactions entered into by the Partnership
or ICON, 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
Partnership and ICON 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 KPMG Peat Marwick LLP, who have certified such financial
statements, are independent public accountants as required by the Act and
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
Partnership of this Agreement or the issuance and sale by the Partnership of
the Units, 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 Partnership, threatened against the Partnership, ICON 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
Partnership or ICON.
(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 Partnership 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 Partnership or ICON 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 Partnership or ICON or any of their property,
except to the extent that the enforceability of the indemnity and/or
contribution provisions contained in Section 6 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 the relief
or benefit of debtors generally and to the limitations on equitable relief.
(k) The Partnership 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 6 of this Agreement may be
limited under applicable securities laws.
(l) At the time of the delivery of the Units, the Units 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.
(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 Units 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
(includin, but not limited to, the suitability record retention and disclosure
covenants contained in Section 8(b) 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 Partnership and the General Partner.
The Partnership:
ICON Income Fund Eight, consisting of ICON Income Fund
Eight A L.P. and ICON Income Fund Eight B L.P.
(the "Partnerships")
By: ICON Capital Corp., its General Partner
By: _________________________________________
Beaufort ▇. ▇. ▇▇▇▇▇▇, President
The Dealer-Manager:
-------------------
ICON Securities Corp.
By: __________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President
Exhibit A
Jurisdictions in which Selling Dealer is Qualified
(__) Alabama (__) Kentucky (__) North Dakota
(__) Alaska (__) Louisiana (__) Ohio
(__) Arizona (__) Maine (__) Oklahoma
(__) Arkansas (__) Maryland (__) Oregon
(__) California (__) Massachusetts (__) Pennsylvania
(__) Colorado (__) Michigan (__) Puerto Rico
(__) Connecticut (__) Minnesota (__) Rhode Island
(__) Delaware (__) Mississippi (__) South Carolina
(__) District of Columbia (__) Missouri (__) South Dakota
(__) Florida (__) Montana (__) Tennessee
(__) Georgia (__) Nebraska (__) Texas
(__) Hawaii (__) Nevada (__) Utah
(__) Idaho (__) New Hampshire (__) Vermont
(__) Illinois (__) New Jersey (__) Virginia
(__) Indiana (__) New Mexico (__) Washington
(__) Iowa (__) New York (__) West Virginia
(__) Kansas (__) North Carolina (__) Wisconsin
(__) Wyoming
The Dealer-Manager:
------------------
ICON Securities Corp.
By:_______________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Executive Vice President