SAGE, ▇▇▇▇▇ & CO., INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Date: ________, 2005
SELECTED DEALER AGREEMENT
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Dear Sirs:
Sage, ▇▇▇▇▇ & Co., Inc., the underwriter (the "Underwriter") named in the
Prospectus (as hereinafter defined) has agreed, subject to the terms and
conditions of that certain underwriting agreement (the "Underwriting Agreement")
dated ____________, 2005, between the Underwriter and Intervest Mortgage
Corporation (the "Issuer"), to act as exclusive agent for the Issuer and to use
its best efforts to sell an aggregate of $12,000,000 principal amount of Series
_/__/05 Subordinated Debentures (the "Debentures") of the Issuer, in three
maturities as follows: $2,000,000 with a maturity date of October 1, 2009;
$4,000,000 with a maturity date of October 1, 2011; and $6,000,000 with a
maturity date of October 1, 2013. The Debentures are more particularly
described in the enclosed prospectus (the "Prospectus"), additional copies of
which will be supplied in reasonable quantities upon request.
The Underwriter is offering a part of the Debentures for sale by selected
dealers (the "Selected Dealers"), including yourself, who are registered with
the Securities and Exchange Commission (the "SEC") as broker-dealers under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and who are
members in good standing of the National Association of Securities Dealers, Inc.
(the "NASD"), on a "best efforts" basis.
The offering is subject to the delivery of the Debentures, and the
acceptance of the offering by the Underwriter, the approval of all legal matters
by counsel, and the terms and conditions herein set forth.
Subject to the foregoing, the Underwriter confirms its agreement with you
(sometimes herein called the "Dealer"') as follows:
1. Non-Exclusive Right to Offer and Sell. Underwriter hereby grants to
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you the non-exclusive right to offer and sell the Debentures in such face
amounts and upon such terms as the Underwriter shall from time to time determine
and as set forth in the then effective Prospectus relating to such Debentures.
The amount and maturity of Debentures which the Underwriter has initially
determined to permit you to offer and sell is set forth at the end of this
letter, although the Underwriter reserves the right to change such allotment.
You agree (a) upon our request, to advise us of the number of Debentures
allotted to you which remain unsold; and (b) at our request, to stop offering
any such Debentures remaining unsold.
2. Compliance with Laws. A registration statement on Form S-11 (the
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"Registration Statement") with respect to the Debentures has been filed with the
SEC and has become effective. You agree to comply with the applicable
requirements of the Securities Act of 1933, as amended (the "1933 Act"), the
1934 Act and any applicable rules and regulations issued under said Acts. No
person is authorized by the Issuer or by the Underwriter to give any information
or to make any representation other than those contained in the Prospectus in
connection with the sale of the Debentures.
3. Dealer Representations. Dealer represents that it is a member in
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good standing of the NASD and agrees to abide by all of the NASD rules and
regulations, and any interpretations thereof, including, without limitation, the
NASD interpretation with respect to Free-Riding and Withholding (Rule IM-2110-1)
and Rules 2420, 2500 and 2700 (including, but not limited to Rules 2730, 2740
and 2750) of the NASD Conduct Rules. Dealer also agrees to comply with the
requirements of all applicable Federal and State Laws and all rules and
regulations thereunder, and interpretations thereof, promulgated by any
regulatory agency having jurisdiction.
In the event that a domestic or foreign Dealer should sell or offer for
sale the Debentures in any jurisdiction outside the United States, Dealer also
agrees to comply with the laws, rules and regulations of any governmental or
regulatory body applicable within such foreign jurisdiction.
4. State Registrations. You will be informed by the Underwriter as to
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the states in which we have been advised by counsel that the Debentures have
been qualified or registered for sale or are exempt under the respective
securities or "blue sky" laws of such states, but we have not assumed and will
not assume any obligation or responsibility as to the accuracy of such
information or as to the eligibility or right of any Selected Dealer to offer or
sell the Debentures in any state.
5. Underwriter Authority and Liability. The Underwriter shall have
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full authority to take such action as it may deem advisable in respect of all
matters pertaining to the offering or arising thereunder. The Underwriter shall
not be under any liability to you with respect to any matter, except such as may
be incurred under the 1933 Act and the rules and regulations thereunder, except
for lack of good faith and except for obligations assumed by us in this
Agreement, and no obligation on our part shall be implied or inferred herefrom.
6. Payment and Procedures. All subscriptions for investments shall be
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confirmed on forms of a type acceptable under the rules and regulations of the
NASD and in accordance with Rule 15c2-8 of the 1934 Act. If at least
$10,000,000 in collected funds (as defined in the Escrow Agreement) have been
received and such subscriptions accepted by the Issuer by _________, 2005, the
Issuer may close the Offering as to those subscribers (the "First Closing
Date"). Until the First Closing Date, you shall promptly, upon receipt of any
and all checks, drafts, and money orders received from prospective purchasers of
the Debentures, transmit, in accordance with Rule 15c2-4(b) of the 1934 Act,
such items to Canandaigua National Bank and Trust Company, Canandaigua, New
York, as Escrow Agent, for deposit into an account entitled "Canandaigua
National Bank & Trust Company, as Escrow Agent for Intervest Mortgage
Corporation", but in any event such transmittal to the Escrow Agent shall be
made by noon of the next business day after your receipt of such funds. Funds
may also be transmitted to the escrow agent by wire transfer. Any Debentures
remaining unsold after the First Closing Date may continue to be offered and
sold for up to 120 days after the First Closing Date. After the First Closing
Date, you shall promptly transmit any and all checks, drafts, and money orders
received from prospective purchasers of the Debentures to the Underwriter by
noon of the next business day after you receive such funds. At the same time
you deliver funds received to the Escrow Agent, or directly to the Underwriter,
you shall also deliver to Underwriter, a written account of each purchaser which
sets forth, among other things, the name, address and tax identification number
of the purchaser, the number of Debentures purchased, the maturity thereof, and
the amount paid therefor which shall be accompanied by a copy of the check and
any transmittal letter to the Escrow Agent.
You agree to be bound by the terms of the Escrow Agreement executed by
Underwriter and the Issuer and acknowledge that you have received a copy of such
Escrow Agreement.
Until the First Closing Date, checks shall be made payable to "CNB - Escrow
Intervest". After the First Closing Date, checks shall be made payable to
"Intervest Mortgage Corporation ", the Issuer. Until the First Closing Date,
any checks received by the Escrow Agent which are made payable to any party
other than the Escrow Agent, shall be returned by the Escrow Agent to the
purchaser who submitted the check and shall not be accepted.
All Debentures shall be registered and issued as designated by Dealer after
the Closing Dates specified in the Prospectus.
The Issuer reserves the right to reject any subscription, and in such case,
the Issuer will instruct the Escrow Agent or Underwriter, as may be the case, to
return, in full, any payment made in connection therewith.
If at least $10,000,000 in collected funds (as defined in the Escrow
Agreement) have not been received and such subscriptions accepted by the Issuer
by _______, 2005, subscription documents and funds shall be promptly returned to
subscribers. Interest earned on funds in the Escrow Account shall be applied to
pay escrow expenses, with the balance of interest, if any, to be paid to
subscribers in proportion to the amount of funds paid by each such subscriber
without regard to the date when such subscription funds were
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paid. It shall be a condition of making any such refund to a subscriber,
however, that there be delivered to the Escrow Agent a Form W-9 executed by such
subscriber.
7. Delivery of Prospectus. You shall solicit subscriptions for the
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Debentures only in accordance with the then current Prospectus, shall deliver a
current Prospectus to each prospective investor, shall utilize as solicitation
material only the Prospectus and such supplemental sales literature as shall be
identified as such and furnished or authorized in writing by the Issuer, and
shall make no representations other than those contained in such Prospectus and
supplemental literature. You shall also be responsible for the servicing of
investors, including responding to inquiries by, and maintaining periodic
contacts with, the investor.
8. Restrictions on Sales and Purchases of Debentures. During the term
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of this Agreement, you will not, directly or indirectly, buy, sell, or induce
others to buy or sell, the Debentures except (a) pursuant to this Agreement, (b)
as expressly authorized by the Underwriter in writing, or (c) in the ordinary
course of business as broker or agent for a customer pursuant to an unsolicited
order. You represent that you have not participated in any transaction
prohibited by the preceding sentence and that you have at all times complied
with the provisions of Rule 10b-6 of the 1934 Act applicable to this offering.
You will take such steps as you deem necessary to assure that purchasers of the
Debentures meet the suitability standards set forth in the Prospectus or
otherwise imposed by the Issuer and will maintain for a period of at least four
(4) years a record of the information obtained to indicate that such standards
have been met.
9. Commissions. You will be entitled to receive commissions in the
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amount of $300 on each Debenture maturing October 1, 2009, commissions in the
amount of $500 on each Debenture maturing October 1, 2011, and commissions in
the amount of $700 on each Debenture maturing October 1, 2013 sold by you under
this Agreement, provided, however, that the offering will be terminated and no
commissions will be payable unless an aggregate of at least $10,000,000 of the
Debentures, without regard to maturity, are sold by ________, 2005.
10. Dealer Responsibility for Training and Representatives. You
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undertake full responsibility for adequate training of your salesmen in all
features of the Debentures offered, with special emphasis on the
responsibilities of such salesmen for full disclosure to prospective investors
and the necessity of delivering a Prospectus to each investor. You will accept
subscriptions only from persons whose investment objectives, to the best of your
knowledge and belief, are consistent with those of the Debentures offered.
11. Sales in Discretionary Accounts. You agree that, without the
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written approval of the customer and the Underwriter prior to the execution of
any order, you will not sell to any account over which you exercise
discretionary authority any of the Debentures which you have been allotted and
which are subject to the terms of this Agreement.
12. Advertisements. It is expected that public advertisement of this
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issue will be made on or about the effective date of the Registration Statement.
After the date of appearance of such advertisement, but not before, you are free
to advertise over your own name and at your own expense and risk, subject,
however, to our prior review and approval of any advertisement.
13. Termination of Agreement. This Agreement may be terminated by
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either party at any time by written or telegraphic notice to the other, but the
Agreement shall not be valid for more than six (6) months from the date of
execution or beyond completion of the offering, whichever is earlier, except
when extended by the Underwriter to complete the offering of the Debentures.
Such termination shall not affect your obligation to comply with this Agreement
nor your right to commissions, as set forth in Paragraph 9 of this Agreement on
subscriptions confirmed by the Issuer by the time of such termination.
14. Relationship of Parties. Nothing in this Agreement shall be
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construed to constitute Dealer a partner, employee or agent of the Underwriter
or Issuer, and neither Underwriter, Issuer or Dealer shall be
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liable for any obligation, act or omission of the other to third parties.
However, in the event such a claim is made, you agree to bear your share of any
liability arising out of such claim.
15. Dealer Expenses. All expenses incurred by Dealer in connection
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with its activities under this Agreement shall be borne by Dealer, except that
Underwriter will furnish, without charge, a reasonable quantity of Prospectuses
and supplemental literature as issued.
16. Miscellaneous. This Agreement supersedes all previous agreements,
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whether oral or written, between Underwriter and Dealer relating to the
Debentures and may not be modified except in writing. All previous agreements,
if any, whether oral or written, between Underwriter and dealer are hereby
canceled. Neither party hereto assumes any liability or obligation toward the
other under this or any previous agreement, except as may be specifically set
forth in this Agreement, nor is any such liability or obligation to be inferred
or implied hereunder.
All communications from you shall be addressed to the Underwriter at the
address set forth above. All communications from the Underwriter to you shall
be directed to the address to which this letter is mailed.
This Agreement shall be construed in accordance with the laws of the State
of New York.
Please confirm that the foregoing sets forth the Agreement between you and
the Underwriter by signing and returning to us the enclosed copy of this letter.
Very truly yours,
SAGE, ▇▇▇▇▇ & CO., INC.
By: _____________________________
___________________________________
(Title)
WE HEREBY CONFIRM AS OF THE DATE HEREOF
THAT THE ABOVE LETTER SETS FORTH THE
AGREEMENT BETWEEN THE UNDERWRITER AND
THE UNDERSIGNED
AMOUNT AND MATURITY OF
DEBENTURES TO BE OFFERED
FOR SALE BY DEALER:
_____________________________________
(Dealer)
$______________________________
October 1, 2009
By: _________________________________
_____________________________________
(Title) $ ______________________________
October 1, 2011
$______________________________
October 1, 2013
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