▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. LLC
MASTER AGREEMENT AMONG UNDERWRITERS
REGISTERED SEC OFFERINGS
(INCLUDING MULTIPLE SYNDICATE OFFERINGS)
AND
EXEMPT OFFERINGS
(OTHER THAN OFFERINGS OF MUNICIPAL SECURITIES)
June 1, 2011
This Master Agreement Among Underwriters (this "Master AAU"), dated as of
June 1, 2011, is by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇," or
"we") and the party named on the signature page hereof (an "Underwriter," as
defined in Section 1.1 hereof, or "you"). From time to time we or one or more of
our affiliates may invite you (and others) to participate on the terms set forth
herein as an underwriter or an initial purchaser, or in a similar capacity, in
connection with certain offerings of securities that are managed solely by us or
with one or more other co-managers. If we invite you to participate in a
specific offering and sale of securities (an "Offering") to which this Master
AAU will apply, we will send the information set forth in Section 1.1 hereof to
you by one or more wires, telexes, telecopy or electronic data transmissions, or
other written communications (each, a "Wire," and collectively, an "AAU"),
unless you are otherwise deemed to have accepted an AAU with respect to such
Offering pursuant to Section 1.2 hereof. Each Wire will indicate that it is a
Wire pursuant to this Master AAU. The Wire inviting you to participate in an
Offering is referred to herein as an "Invitation Wire." You and we hereby agree
that by the terms hereof the provisions of this Master AAU automatically will be
incorporated by reference in each AAU, except that any such AAU may also exclude
or revise such provisions of this Master AAU in respect of the Offering to which
such AAU relates, and may contain such additional provisions as may be specified
in any Wire relating to such AAU. You and we further agree as follows:
ARTICLE I
GENERAL
Section 1.1. Terms of AAU; Certain Definitions; Construction. Each AAU will
relate to an Offering, and will identify: (i) the securities to be offered in
the Offering (the "Securities"), their principal terms, the issuer or issuers
(each, an "Issuer") and any guarantor (each, a "Guarantor") thereof, and, if
different from the Issuer, the seller or sellers (each, a "Seller") of the
Securities, (ii) the underwriting agreement, purchase agreement, standby
underwriting agreement, distribution agreement, or similar agreement (as
identified in such AAU and as amended or supplemented, including a terms
agreement or pricing agreement pursuant to any of the foregoing, collectively,
the "Underwriting Agreement") providing for the purchase, on a several and not
joint basis, of the Securities by the several underwriters, initial purchasers,
or others acting in a similar capacity (the "Underwriters") on whose behalf the
Manager (as defined below) executes the Underwriting Agreement, and whether such
agreement provides for: (x) an option to purchase Additional Securities (as
defined below) to cover sales of shares in excess of the number of Firm
Securities (as defined below), or (y) an offering in multiple jurisdictions or
markets involving two or more syndicates (an "International Offering"), each of
which will offer and sell Securities subject to such restrictions as may be
specified in any Intersyndicate Agreement (as defined below) referred to in such
AAU, (iii) the price at which the Securities are to be purchased by the several
Underwriters from any Issuer or Seller thereof (the "Purchase Price"), (iv) the
offering terms, including, if applicable, the price or prices at which the
Securities initially will be offered by the Underwriters (the "Offering Price"),
any selling concession to dealers (the "Selling Concession"), reallowance (the
"Reallowance"), management fee, global coordinators' fee, praecipium, or other
similar fees, discounts, or commissions (collectively, the "Fees and
Commissions") with respect to the Securities, and (v) other principal terms of
the Offering, which may include, without limitation: (A) the proposed or actual
pricing date ("Pricing Date") and settlement date (the "Settlement Date"), (B)
any contractual restrictions on the offer and sale of the Securities pursuant to
the Underwriting Agreement, Intersyndicate Agreement, or otherwise, (C) any
co-managers for such Offering (the "Co-Managers"), (D) your proposed
participation in the Offering, and (E) any trustee, fiscal agent, or similar
agent (the "Trustee") for the indenture, trust agreement, fiscal agency
agreement, or similar agreement (the "Indenture") under which such Securities
will be issued.
"Manager" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, except as set forth in Section 9.9 hereof.
"Representative" means the Manager and any Co-Manager that signs the applicable
Underwriting Agreement on behalf of the Underwriters or is identified as a
Representative in the applicable Underwriting Agreement. "Underwriters" includes
the Representative(s), the Manager, and the Co-Managers. "Firm Securities" means
the number or amount of Securities that the several Underwriters are initially
committed to purchase under the Underwriting Agreement (which may be expressed
as a percentage of an aggregate number or amount of Securities to be purchased
by the Underwriters, as in the case of a standby Underwriting Agreement).
"Additional Securities" means the Securities, if any, that the several
Underwriters have an option to purchase under the Underwriting Agreement to
cover sales of shares in excess of the number of Firm Securities. The number,
amount, or percentage of Firm Securities set forth opposite each Underwriter's
name in the Underwriting Agreement plus any additional Firm Securities which
such Underwriter has made a commitment to purchase, irrespective of whether such
Underwriter actually purchases or sells such number, amount, or percentage of
Securities under the Underwriting Agreement or Article XI hereof, is hereinafter
referred to as the "Original Underwriting Obligation" of such Underwriter, and
the ratio which such Original Underwriting Obligation bears to the total of all
Firm Securities set forth in the Underwriting Agreement (or, in the case of a
standby Underwriting Agreement, to 100%) is hereinafter referred to as the
"Underwriting Percentage" of such Underwriter. For the avoidance of doubt, each
Underwriter acknowledges and agrees that, for all purposes under this Agreement
and otherwise (including, to the extent applicable, for purposes of Section
11(e) under the U.S. Securities Act of 1933 (the "1933 Act")), each
Underwriter's Underwriting Percentage of the total number, amount, or percentage
of Securities offered and sold in the Offering (including any Additional
Securities), and only such number, amount, or percentage, constitutes the
securities underwritten by such Underwriter and distributed to investors.(1)
References herein to laws, statutory and regulatory sections, rules,
regulations, forms, and interpretive materials will be deemed to include any
successor provisions.
Section 1.2. Acceptance of AAU. You will have accepted an AAU for an
Offering if: (a) we receive your acceptance, prior to the time specified in the
Invitation Wire for such Offering, by wire, telex, telecopy or electronic data
transmission, or other written communication (any such communication being
-------------------
1 Meant to clarify mechanics of underwriting for purposes of Section 11(e),
and rebut footnote 8 of the WorldCom decision (See In re: Worldcom, Inc.
Securities Litigation, U.S. Dist. Ct. (SDNY), slip-op 02 Civ 3288, March
14, 2005 (unpublished).
-2-
deemed "In Writing") or orally (if promptly confirmed In Writing), in the manner
specified in the Invitation Wire, of our invitation to participate in the
Offering, or (b) notwithstanding that we did not send you an Invitation Wire or
you have not otherwise responded In Writing to any such Wire, you: (i) agree
(orally or by a Wire) to be named as an Underwriter in the relevant Underwriting
Agreement executed by us as Manager, or (ii) receive and retain an economic
benefit for participating in the Offering as an Underwriter. Your acceptance of
the invitation to participate will cause such AAU to constitute a valid and
binding contract between us. Your acceptance of the AAU as provided above or an
Invitation Wire will also constitute acceptance by you of the terms of
subsequent Wires to you relating to the Offering unless we receive In Writing,
within the time and in the manner specified in such subsequent Wire, a notice
from you to the effect that you do not accept the terms of such subsequent Wire,
in which case you will be deemed to have elected not to participate in the
Offering.
Section 1.3. Underwriters' Questionnaire. Your acceptance of the
Invitation Wire for an Offering or your participation in an Offering as an
Underwriter will confirm that you have no exceptions to the Underwriters'
Questionnaire attached as Exhibit A hereto (or to any other questions addressed
to you in any Wires relating to the Offering previously sent to you), other than
exceptions noted by you In Writing in connection with the Offering and received
from you by us before the time specified in the Invitation Wire or any
subsequent Wire.
ARTICLE II
OFFERING MATERIALS; OFFERING AGREEMENTS
Section 2.1. Registered Offerings. In the case of an Offering that will be
registered in whole or in part (a "Registered Offering") under the 1933 Act, you
acknowledge that the Issuer has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus
relating to the Securities. "Registration Statement" means such registration
statement as amended to the effective date of the Underwriting Agreement and, in
the event that the Issuer files an abbreviated registration statement to
register additional Securities pursuant to Rule 462(b) or 462(e) under the 1933
Act, such abbreviated registration statement. "Prospectus" means the prospectus,
together with the final prospectus supplement, if any, containing the final
terms of the Securities and, in the case of a Registered Offering that is an
International Offering, "Prospectus" means, collectively, each prospectus or
offering circular, together with each final prospectus supplement or final
offering circular supplement, if any, relating to the Offering, in the
respective forms containing the final terms of the Securities. "Preliminary
Prospectus" means any preliminary prospectus relating to the Offering or any
preliminary prospectus supplement together with a prospectus relating to the
Offering and, in the case of a Registered Offering that is an International
Offering, "Preliminary Prospectus" means, collectively, each preliminary
prospectus or preliminary offering circular relating to the Offering or each
preliminary prospectus supplement or preliminary offering circular supplement,
together with a prospectus or offering circular, respectively, relating to the
Offering. "Free Writing Prospectus" means, in the case of a Registered Offering,
a "free writing prospectus" as defined in Rule 405 under the 1933 Act. As used
herein the terms "Registration Statement," "Prospectus," "Preliminary
Prospectus," and "Free Writing Prospectus" will include in each case the
-3-
material, if any, incorporated by reference therein, and as used herein, the
term "Registration Statement" includes information deemed to be part thereof
pursuant to, and as of the date and time specified in, Rules 430A, 430B, or 430C
under the 1933 Act, while the terms "Prospectus" and "Preliminary Prospectus"
include information deemed to be a part thereof pursuant to the rules and
regulations under the 1933 Act, but only as of the actual time that information
is first used or filed with the Commission pursuant to Rule 424(b) under the
1933 Act. The Manager will furnish, make available to you, or make arrangements
for you to obtain copies (which may, to the extent permitted by law, be in
electronic form) of each Prospectus and Preliminary Prospectus (as amended or
supplemented, if applicable, but excluding, for this purpose, unless otherwise
required pursuant to rules or regulations under the 1933 Act, documents
incorporated therein by reference) as soon as practicable after sufficient
quantities thereof have been made available by the Issuer.
As used herein, in the case of an Offering that is an offering of
asset-backed securities, the term "ABS Underwriter Derived Information" means
any analytical or computational materials as described in clause (5) of footnote
271 of Commission Release No. 33-8591, issued July 19, 2005 (Securities Offering
Reform) (the "Securities Offering Reform Release").
Section 2.2. Non-Registered Offerings. In the case of an Offering other
than a Registered Offering, you acknowledge that no registration statement has
been filed with the Commission. "Offering Circular" means the final offering
circular or memorandum, if any, or any other final written materials authorized
by the Issuer to be used in connection with an Offering that is not a Registered
Offering. "Preliminary Offering Circular" means any preliminary offering
circular or memorandum, if any, or any other written preliminary materials
authorized by the Issuer to be used in connection with such an Offering. As used
herein, the terms "Offering Circular" and "Preliminary Offering Circular"
include the material, if any, incorporated by reference therein. We will either,
as soon as practicable after the later of the date of the Invitation Wire or the
date made available to us by the Issuer, furnish to you (or make available for
your review) a copy of any Preliminary Offering Circular or any proof or draft
of the Offering Circular. In any event, in any Offering involving an Offering
Circular, the Manager will furnish, make available to you, or make arrangements
for you to obtain, as soon as practicable after sufficient quantities thereof
are made available by the Issuer, copies (which may, to the extent permitted by
law, be in electronic form) of the Preliminary Offering Circular and Offering
Circular, as amended or supplemented, if applicable (but excluding, for this
purpose, documents incorporated therein by reference).
Section 2.3. Authority to Execute Underwriting and Intersyndicate
Agreements. You authorize the Manager, on your behalf: (a) to determine the form
of the Underwriting Agreement and to execute and deliver to the Issuer,
Guarantor, or Seller the Underwriting Agreement to purchase: (i) up to the
number, amount, or percentage of Firm Securities set forth in the applicable
AAU, and (ii) if the Manager elects on behalf of the several Underwriters to
exercise any option to purchase Additional Securities, up to the number, amount,
or percentage of Additional Securities set forth in the applicable AAU, subject,
in each case, to reduction pursuant to Article IV; and (b) to determine the form
of any agreement or agreements, including, but not limited to, underwriting
agreements, between or among the syndicates participating in the Offering or
-4-
International Offering, respectively (each, an "Intersyndicate Agreement"), and
to execute and deliver any such Intersyndicate Agreement.
ARTICLE III
MANAGER'S AUTHORITY
Section 3.1. Terms of Offering. You authorize the Manager to act as
manager of the Offering of the Securities by the Underwriters (the
"Underwriters' Securities") or by the Issuer or Seller pursuant to delayed
delivery contracts (the "Contract Securities"), if any, contemplated by the
Underwriting Agreement. You authorize the Manager: (i) to purchase any or all of
the Additional Securities for the accounts of the several Underwriters pursuant
to the Underwriting Agreement, (ii) to agree, on your behalf and on behalf of
the Co-Managers, to any addition to, change in, or waiver of any provision of,
or the termination of, the Underwriting Agreement or any Intersyndicate
Agreement (other than an increase in the Purchase Price or in your Original
Underwriting Obligation to purchase Securities, in either case from that
contemplated by the applicable AAU), (iii) to add prospective or remove existing
Underwriters from the syndicate, (iv) to exercise, in the Manager's discretion,
all of the authority vested in the Manager in the Underwriting Agreement, (v)
except as described below in this Section 3.1, to take any other action as may
seem advisable to the Manager in respect of the Offering (including, in the case
of an Offering of asset-backed securities, the preparation and delivery of ABS
Underwriter Derived Information), including actions and communications with the
Commission, the Financial Industry Regulatory Authority ("FINRA," formerly known
as the National Association of Securities Dealers, Inc., and NASD, Inc., or
"NASD"), state blue sky or securities commissions, stock exchanges, and other
regulatory bodies or organizations. Furthermore, the Manager will have exclusive
authority, on your behalf and on behalf of the Co-Managers, to exercise powers
and pursue enforcement of the terms and conditions of the Underwriting Agreement
and any Intersyndicate Agreement, whether or not actually exercised, except as
otherwise specified herein or therein. If, in accordance with the terms of the
applicable AAU, the Offering of the Securities is at varying prices based on
prevailing market prices, or prices related to prevailing market prices, or at
negotiated prices, you authorize the Manager to determine, on your behalf in the
Manager's discretion, any Offering Price and the Fees and Commissions applicable
to the Offering from time to time. You authorize the Manager on your behalf to
arrange for any currency transactions (including forward and hedging currency
transactions) as the Manager may deem necessary to facilitate settlement of the
purchase of the Securities, but you do not authorize the Manager on your behalf
to engage in any other forward or hedging transactions (including interest rate
hedging transactions) in connection with the Offering unless such transactions
are specified in an applicable AAU or are otherwise consented to by you. You
further authorize the Manager, subject to the provisions of Section 1.2 hereof:
(i) to vary the offering terms of the Securities in effect at any time,
including, if applicable, the Offering Price, Fees, and Commissions set forth in
the applicable AAU, (ii) to determine, on your behalf, the Purchase Price, and
(iii) to increase or decrease the number, amount, or percentage of Securities
being offered. Notwithstanding the foregoing provisions of this Section 3.1, the
Manager will notify the Underwriters, prior to the signing of the Underwriting
Agreement, of any provision in the Underwriting Agreement that could result in
an increase in the number, amount, or percentage of Firm Securities set forth
opposite each Underwriter's name in the Underwriting Agreement by more than 25%
-5-
(or such other percentage as will have been specified in the applicable
Invitation Wire or otherwise consented to by you) as a result of the failure or
refusal of another Underwriter or Underwriters to perform its or their
obligations thereunder. The Manager may, at its discretion, delegate to any
Underwriter any and all authority vested in the applicable AAU, including, but
not limited to, the powers set forth in Sections 5.1 and 5.2 hereof.
Section 3.2. Offering Date. The Offering is to be made on or about the
time the Underwriting Agreement is entered into by the Issuer, Guarantor, or
Seller and the Manager as in the Manager's judgment is advisable, on the terms
and conditions set forth in the Prospectus or the Offering Circular, as the case
may be, and the applicable AAU. You will not sell any Securities prior to the
time the Manager releases such Securities for sale to purchasers. The date on
which such Securities are released for sale is referred to herein as the
"Offering Date."
Section 3.3. Communications. Any public announcement or advertisement of
the Offering will be made by the Manager on behalf of the Underwriters on such
date as the Manager may determine. You will not announce or advertise the
Offering prior to the date of the Manager's announcement or advertisement
thereof without the Manager's consent. If the Offering is made in whole or in
part in reliance on any applicable exemption from registration under the 1933
Act, you will not engage in any general solicitation, announcement, or
advertising in connection with the Offering, and will abide by any other
restrictions in the AAU or the Underwriting Agreement in connection therewith
relating to any announcement, advertising, or publicity. Any announcement or
advertisement you may make of the Offering after such date will be your own
responsibility, and at your own expense and risk. In addition to your compliance
with restrictions on the Offering pursuant to Sections 10.9, 10.10, 10.11, and
10.12 hereof, you will not, in connection with the offer and sale of the
Securities in the Offering, without the consent of the Manager, give, send, or
otherwise convey to any prospective purchaser or any purchaser of the Securities
or other person not in your employ any written communication (as defined in Rule
405 under the ▇▇▇▇ ▇▇▇) other than:
(i) any Preliminary Prospectus, Prospectus, Preliminary Offering
Circular, or Offering Circular,
(ii) (A) written confirmations and notices of allocation delivered
to your customers in accordance with Rules 172 or 173 under the 1933 Act,
and written communications based on the exemption provided by Rule 134
under the 1933 Act, and (B) in the case of Offerings not registered under
the 1933 Act, such written communications (1) as would be permitted by
Section 3.3(v)(D)(1) below were such Offering registered under the 1933
Act, or (2) that the Manager or Underwriting Agreement may permit;
provided, however, that such written communication under this clause (B)
would not have otherwise constituted "Issuer Information" as defined
below, or would have qualified for the exemption provided by Rule 134
under the 1933 Act, in each case, if such communication had been furnished
in the context of a Registered Offering ("Supplemental Materials"),
-6-
(iii) any "issuer free writing prospectus" (as defined in Rule
433(h) under the 1933 Act, an "Issuer Free Writing Prospectus"), so long
as such issuance or use has been permitted or consented to by the Issuer
and the Manager,
(iv) information contained in any computational materials, or in the
case of an Offering of asset backed securities, the ABS Underwriter
Derived Information, or any other offering materials not constituting a
Free Writing Prospectus concerning the Offering, the Issuer, the
Guarantor, or the Seller, in each case, prepared by or with the permission
of the Manager for use by the Underwriters in connection with the
Offering, and, in the case of a Registered Offering, filed (if required)
with the Commission or FINRA, as applicable, and
(v) a Free Writing Prospectus prepared by or on behalf of, or used
or referred to by, an Underwriter in connection with the Offering, so long
as: (A) such Free Writing Prospectus is not required to be filed with the
Commission, (B) the proposed use of such Free Writing Prospectus is
permitted by the Underwriting Agreement, (C) such Free Writing Prospectus
complies with the legending condition of Rule 433 under the 1933 Act, and
you comply with the record-keeping condition of Rule 433, and (D) (1) such
Free Writing Prospectus contains only information describing the
preliminary terms of the Securities and other pricing data(2) that is not
"Issuer Information" (as defined in Rule 433(h) under the 1933 Act,
including footnote 271 of the Securities Offering Reform Release), or (2)
the Issuer has agreed in the Underwriting Agreement to file a final term
sheet under Rule 433 within the time period necessary to avoid a
requirement for any Underwriter to file the Free Writing Prospectus to be
used by such Underwriter, and the Free Writing Prospectus used by such
Underwriter contains only information describing the terms of the
Securities or their offering that is included in such final term sheet of
the Issuer and other pricing data that is not Issuer Information (a Free
Writing Prospectus meeting the requirements of (A) through (D) above used,
or referred to by you, is referred to herein as an "Underwriter Free
Writing Prospectus" of yours). Without limiting the foregoing, any
Underwriter Free Writing Prospectus that you use or refer to will not be
distributed by you or on your behalf in a manner reasonably designed to
lead to its broad unrestricted dissemination. You will comply in all
material respects with the applicable requirements of the 1933 Act and the
rules and regulations thereunder in connection with your use of any
Underwriter Free Writing Prospectus.
Any advertisement or written information published, given, sent, or
otherwise conveyed by you in violation of this Section 3.3 is referred to as
"Unauthorized Material."
Section 3.4. Institutional and Retail Sales. You authorize the Manager to
sell to institutions and retail purchasers such Securities purchased by you
pursuant to the Underwriting Agreement as the Manager will determine. The
Selling Concession on any such sales will be credited to the accounts of the
Underwriters as the Manager will determine.
-------------------
2 Meant to permit disclosure of non-Issuer related information, such as
benchmark Treasury rate, in preliminary term sheets or price talk.
-7-
Section 3.5. Sales to Dealers. You authorize the Manager to sell to
Dealers (as defined below) such Securities purchased by you pursuant to the
Underwriting Agreement as the Manager will determine. A "Dealer" will be a
person who is: (a) a broker or dealer (as defined by FINRA) actually engaged in
the investment banking or securities business, and (i) a member in good standing
of FINRA, or (ii) a non-U.S. bank, broker, dealer, or other institution not
eligible for membership in FINRA that, in the case of either clause (a)(i) or
(a)(ii), makes the representations and agreements applicable to such
institutions contained in Section 10.5 hereof, or (b) in the case of Offerings
of Securities that are exempt securities under Section 3(a)(12) of the
Securities Exchange Act of 1934 (the "1934 Act"), and such other Securities as
from time to time may be sold by a "bank" (as defined in Section 3(a)(6) of the
1934 Act (a "Bank")), a Bank that is not a member of FINRA and that makes the
representations and agreements applicable to such institutions contained in
Section 10.5 hereof. If the price for any such sales by the Manager to Dealers
exceeds an amount equal to the Offering Price less the Selling Concession set
forth in the applicable AAU, the amount of such excess, if any, will be credited
to the accounts of the Underwriters as the Manager will determine.
Section 3.6. Direct Sales. The Manager will advise you promptly, on the
Offering Date, as to the Securities purchased by you pursuant to the
Underwriting Agreement that you will retain for direct sale. At any time prior
to the termination of the applicable AAU, any such Securities that are held by
the Manager for sale but not sold may, on your request and at the Manager's
discretion, be released to you for direct sale, and Securities so released to
you will no longer be deemed held for sale by the Manager. You may allow, and
Dealers may reallow, a discount on sales to Dealers in an amount not in excess
of the Reallowance set forth in the applicable AAU. You may not purchase
Securities from, or sell Securities to, any other Underwriter or Dealer at any
discount or concession other than the Reallowance, except with the prior consent
of the Manager.
Section 3.7. Release of Unsold Securities. From time to time prior to the
termination of the applicable AAU, at the request of the Manager, you will
advise the Manager of the number or amount of Securities remaining unsold which
were retained by or released to you for direct sale, and of the number or amount
of Securities and Other Securities (as defined below) purchased for your account
remaining unsold which were delivered to you pursuant to Article V hereof or
pursuant to any Intersyndicate Agreement, and, on the request of the Manager,
you will release to the Manager any such Securities and Other Securities
remaining unsold: (a) for sale by the Manager to institutions, Dealers, or
retail purchasers, (b) for sale by the Issuer or Seller pursuant to delayed
delivery contracts, or (c) if, in the Manager's opinion, such Securities or
Other Securities are needed to make delivery against sales made pursuant to
Article V hereof or any Intersyndicate Agreement.
Section 3.8. International Offerings. In the case of an International
Offering, you authorize the Manager: (i) to make representations on your behalf
as set forth in any Intersyndicate Agreement, and (ii) to purchase or sell for
your account pursuant to the Intersyndicate Agreement: (a) Securities, (b) any
other securities of the same class and series, or any securities into which the
Securities may be converted or for which the Securities may be exchanged or
exercised, and (c) any other securities designated in the applicable AAU or
-8-
applicable Intersyndicate Agreement (the securities referred to in clauses (b)
and (c) above being referred to collectively as the "Other Securities").
ARTICLE IV
DELAYED DELIVERY CONTRACTS
Section 4.1. Arrangements for Sales. Arrangements for sales of Contract
Securities will be made only through the Manager acting either directly or
through Dealers (including Underwriters acting as Dealers), and you authorize
the Manager to act on your behalf in making such arrangements. The aggregate
number or amount of Securities to be purchased by the several Underwriters will
be reduced by the respective number or amounts of Contract Securities attributed
to such Underwriters as hereinafter provided. Subject to the provisions of
Section 4.2 hereof, the aggregate number or amount of Contract Securities will
be attributed to the Underwriters as nearly as practicable in proportion to
their respective Underwriting Percentages, except that, as determined by the
Manager in its discretion: (a) Contract Securities directed and allocated by a
purchaser to specific Underwriters will be attributed to such Underwriters, and
(b) Contract Securities for which arrangements have been made for sale through
Dealers will be attributed to each Underwriter approximately in the proportion
that Securities of such Underwriter held by the Manager for sales to Dealers
bear to all Securities so held. The fee with respect to Contract Securities
payable to the Manager for the accounts of the Underwriters pursuant to the
Underwriting Agreement will be credited to the accounts of the respective
Underwriters in proportion to the Contract Securities attributed to such
Underwriters pursuant to the provisions of this Section 4.1, less, in the case
of each Underwriter, the concession to Dealers on Contract Securities sold
through Dealers and attributed to such Underwriter.
Section 4.2. Excess Sales. If the number or amount of Contract Securities
attributable to an Underwriter pursuant to Section 4.1 hereof would exceed such
Underwriter's Original Underwriting Obligation reduced by the number or amount
of Underwriters' Securities sold by or on behalf of such Underwriter, such
excess will not be attributed to such Underwriter, and such Underwriter will be
regarded as having acted only as a Dealer with respect to, and will receive only
the concession to Dealers on, such excess.
ARTICLE V
PURCHASE AND SALE OF SECURITIES
Section 5.1. Facilitation of Distribution. In order to facilitate the
distribution and sale of the Securities, you authorize the Manager to buy and
sell Securities and any Other Securities, in addition to Securities sold
pursuant to Article III hereof, in the open market or otherwise (including,
without limitation, pursuant to any Intersyndicate Agreement), for long or short
account, on such terms as it may deem advisable, and to over-allot in arranging
sales. Such purchases and sales and over-allotments will be made for the
accounts of the several Underwriters as nearly as practicable to their
respective Underwriting Percentages or, in the case of an International
Offering, such purchases and sales will be for such accounts as set forth in the
-9-
applicable Intersyndicate Agreement. Any Securities or Other Securities which
may have been purchased by the Manager for stabilizing purposes in connection
with the Offering prior to the acceptance of the applicable AAU will be treated
as having been purchased pursuant to this Section 5.1 for the accounts of the
several Underwriters or, in the case of an International Offering, for such
accounts as are set forth in the applicable Intersyndicate Agreement. Your net
commitment pursuant to the foregoing authorization will not exceed at the close
of business on any day an amount equal to 20% of your Underwriting Percentage of
the aggregate initial Offering Price of the Firm Securities, it being understood
that, in calculating such net commitment, the initial Offering Price will be
used with respect to the Securities so purchased or sold and, in the case of all
Other Securities, will be the purchase price thereof. For purposes of
determining your net commitment for short account (i.e., "naked short"), any
short position that can be covered with: (a) Securities that may be purchased
upon exercise of any option to purchase Additional Securities, (b) in the case
of an International Offering, any Securities or Other Securities that the
Manager has agreed to purchase for your account pursuant to any applicable
Intersyndicate Agreement, and (c) Securities that may be purchased pursuant to a
forward sale contract or similar arrangement with the Issuer or any selling
security holder in the Offering, will be disregarded. On demand you will take up
and pay for any Securities or Other Securities so purchased for your account and
any Securities released to you pursuant to Section 3.7 hereof, and will deliver
to the Manager against payment any Securities or Other Securities so sold or
over-allotted for your account or released to you. The Manager will notify you
if it engages in any stabilization transaction in accordance with Rule 17a-2
under the 1934 Act, and will notify you of the date of termination of
stabilization. You will not stabilize or engage in any syndicate covering
transaction (as defined in Rule 100 of Regulation M under the 1934 Act
("Regulation M")) in connection with the Offering without the prior consent of
the Manager. You will provide to the Manager any reports required of you
pursuant to Rule 17a-2 of the 1934 Act not later than the date specified
therein.
Section 5.2. Penalty With Respect to Securities Repurchased by the
Manager. If pursuant to the provisions of Section 5.1 hereof and prior to the
termination of the Manager's authority to cover any short position incurred
under the applicable AAU or such other date as the Manager may specify in a
Wire, either: (a) the Manager purchases or contracts to purchase for the account
of any Underwriter in the open market or otherwise any Securities which were
retained by, or released to, you for direct sale or any Securities sold pursuant
to Section 3.4 hereof for which you received a portion of the Selling Concession
set forth in the applicable AAU, or any Securities which may have been issued on
transfer or in exchange for such Securities, and which Securities were therefore
not effectively placed for investment, or (b) if the Manager has advised you by
Wire that trading in the Securities will be reported to the Manager pursuant to
the "Initial Public Offering Tracking System" of The Depository Trust Company
("DTC") and the Manager determines, based on notices from DTC, that your
customers sold a number or amount of Securities during any day that exceeds the
number or amount previously notified to you by Wire, then you authorize the
Manager either to charge your account with an amount equal to such portion of
the Selling Concession set forth in the applicable AAU received by you with
respect to such Securities or, in the case of clause (b), such Securities as
exceed the number or amount specified in such Wire, or to require you to
repurchase such Securities or, in the case of clause (b), such Securities as
exceed the number or amount specified in such Wire, at a price equal to the
-10-
total cost of such purchase, including transfer taxes, accrued interest,
dividends, and commissions, if any.
Section 5.3. Compliance with Regulation M. You represent that, at all
times since you were invited to participate in the Offering, you have complied
with the provisions of Regulation M applicable to the Offering, in each case as
interpreted by the Commission and after giving effect to any applicable
exemptions. If you have been notified in a Wire that the Underwriters may
conduct passive market making in compliance with Rule 103 of Regulation M in
connection with the Offering, you represent that, at all times since your
receipt of such Wire, you have complied with the provisions of such Rule
applicable to such Offering, as interpreted by the Commission and after giving
effect to any applicable exemptions. You will comply with any additional
provisions of Regulation M if and to the extent set forth in the Invitation Wire
or other Wire.
Section 5.4. Standby Underwritings. You authorize the Manager in its
discretion, at any time on, or from time to time prior to, the expiration of the
conversion right of convertible securities identified in the applicable AAU in
the case of securities called for redemption, or the expiration of rights to
acquire securities in the case of rights offerings, for which, in either case,
standby underwriting arrangements have been made: (i) to purchase convertible
securities or rights to acquire Securities for your account, in the open market
or otherwise, on such terms as the Manager determines, and to convert
convertible securities or exercise rights so purchased; and (ii) to offer and
sell the underlying common stock or depositary shares for your account, in the
open market or otherwise, for long or short account (for purposes of such
commitment, such common stock or depositary shares being considered the
equivalent of convertible securities or rights), on such terms consistent with
the terms of the Offering set forth in the Prospectus or Offering Circular as
the Manager determines. On demand, you will take up and pay for any securities
so purchased for your account or you will deliver to the Manager against payment
any securities so sold, as the case may be. During such period, you may offer
and sell the underlying common stock or depositary shares, but only at prices
set by the Manager from time to time, and any such sales will be subject to the
Manager's right to sell to you the underlying common stock or depositary shares
as above provided and to the Manager's right to reserve your securities
purchased, received, or to be received upon conversion. You agree not to
otherwise bid for, purchase, or attempt to induce others to purchase or sell,
directly or indirectly, any convertible securities or rights or underlying
common stock or depositary shares, provided, however, that no Underwriter will
be prohibited from: (a) selling underlying common stock owned beneficially by
such Underwriter on the day the convertible securities were first called for
redemption, (b) converting convertible securities owned beneficially by such
Underwriter on such date or selling underlying common stock issued upon
conversion of convertible securities so owned, (c) exercising rights owned
beneficially by such Underwriter on the record date for a rights offering, or
selling the underlying common stock or depositary shares issued upon exercise of
rights so owned, or (d) purchasing or selling convertible securities or rights
or underlying common stock or depositary shares as a broker pursuant to
unsolicited orders.
-11-
ARTICLE VI
PAYMENT AND SETTLEMENT
You will deliver to the Manager on the date and at the place and time
specified in the applicable AAU (or on such later date and at such place and
time as may be specified by the Manager in a subsequent Wire) the funds
specified in the applicable AAU, payable to the order of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
LLC, for: (a) an amount equal to the Offering Price plus (if not included in the
Offering Price) accrued interest, amortization of original issue discount or
dividends, if any, specified in the Prospectus or Offering Circular, less the
applicable Selling Concession in respect of the Firm Securities to be purchased
by you, (b) an amount equal to the Offering Price plus (if not included in the
Offering Price) accrued interest, amortization of original issue discount or
dividends, if any, specified in the Prospectus or Offering Circular, less the
applicable Selling Concession in respect of such of the Firm Securities to be
purchased by you as will have been retained by or released to you for direct
sale as contemplated by Section 3.6 hereof, or (c) the amount set forth or
indicated in the applicable AAU, as the Manager will advise. You will make
similar payment as the Manager may direct for Additional Securities, if any, to
be purchased by you on the date specified by the Manager for such payment. The
Manager will make payment to the Issuer or Seller against delivery to the
Manager for your account of the Securities to be purchased by you, and the
Manager will deliver to you the Securities paid for by you which will have been
retained by or released to you for direct sale. If the Manager determines that
transactions in the Securities are to be settled through DTC or another
clearinghouse facility and payment in the settlement currency is supported by
such facility, payment for and delivery of Securities purchased by you will be
made through such facilities, if you are a participant, or, if you are not a
participant, settlement will be made through your ordinary correspondent who is
a participant.
ARTICLE VII
EXPENSES
Section 7.1. Management Fee. You authorize the Manager to charge your
account as compensation for the Manager's and Co-Managers' services in
connection with the Offering, including the purchase from the Issuer or Seller
of the Securities, as the case may be, and the management of the Offering, the
amount, if any, set forth as the management fee, global coordinators' fee,
praecipium, or other similar fee in the applicable AAU. Such amount will be
divided among the Manager and any Co-Managers named in the applicable AAU as
they may determine. Each Underwriter acknowledges that such fees are being paid
by the Underwriters, and are not a benefit received directly or indirectly from
the Issuer of the type referred to in Section 11(e) of the 1933 Act.
Section 7.2. Offering Expenses. You authorize the Manager to charge your
account with your Underwriting Percentage of all expenses agreed to be paid by
the Underwriters in the Underwriting Agreement and all expenses of a general
nature incurred by the Manager and Co-Managers under the applicable AAU in
connection with the Offering, including the negotiation and preparation thereof,
or in connection with the purchase, carrying, marketing, sale and distribution
-12-
of any securities under the applicable AAU and any Intersyndicate Agreement,
including, without limitation, legal fees and expenses, transfer taxes, costs
associated with approval of the Offering by FINRA, and the costs of currency
transactions (including forward and hedging currency transactions) or, if
permitted pursuant to Section 3.1 hereof, any other forward or hedging
transactions (including interest rate swaps) entered into to facilitate
settlement of the purchase of Securities permitted hereunder.
ARTICLE VIII
MANAGEMENT OF SECURITIES AND FUNDS
Section 8.1. Advances; Loans; Pledges. You authorize the Manager to
advance the Manager's own funds for your account, charging current interest
rates, and to arrange loans for your account for the purpose of carrying out the
provisions of the applicable AAU and any Intersyndicate Agreement, and in
connection therewith, to hold or pledge as security therefor all or any
securities which the Manager may be holding for your account under the
applicable AAU and any Intersyndicate Agreement, to execute and deliver any
notes or other instruments evidencing such advances or loans, and to give all
instructions to the lenders with respect to any such loans and the proceeds
thereof. The obligations of the Underwriters under loans arranged on their
behalf will be several in proportion to their respective Original Underwriting
Obligations, and not joint. Any lender is authorized to accept the Manager's
instructions as to the disposition of the proceeds of any such loans. In the
event of any such advance or loan, repayment thereof will, in the discretion of
the Manager, be effected prior to making any remittance or delivery pursuant to
Section 8.2, 8.3, or 9.2 hereof.
Section 8.2. Return of Amount Paid for Securities. Out of payment received
by the Manager for Securities sold for your account which have been paid for by
you, the Manager will remit to you promptly an amount equal to the price paid by
you for such Securities.
Section 8.3. Delivery and Redelivery of Securities for Carrying Purposes.
The Manager may deliver to you from time to time prior to the termination of the
applicable AAU pursuant to Section 9.1 hereof against payment, for carrying
purposes only, any Securities or Other Securities purchased by you under the
applicable AAU or any Intersyndicate Agreement which the Manager is holding for
sale for your account but which are not sold and paid for. You will redeliver to
the Manager against payment any Securities or Other Securities delivered to you
for carrying purposes at such times as the Manager may demand.
ARTICLE IX
TERMINATION; INDEMNIFICATION; CONTRIBUTION; SETTLEMENT
Section 9.1. Termination. Each AAU will terminate at the close of business
on the later of: (a) the date on which the Underwriters pay the Issuer or Seller
for the Securities, and (b) 45 calendar days after the applicable Offering Date,
unless sooner terminated by the Manager. The Manager may at its discretion by
notice to you prior to the termination of such AAU alter any of the terms or
-13-
conditions of the Offering to the extent permitted by Articles III and IV
hereof, or terminate or suspend the effectiveness of Article V hereof, or any
part thereof. No termination or suspension pursuant to this paragraph will
affect the Manager's authority under Section 3.1 hereof to take actions in
respect of the Offering or under Article V hereof to cover any short position
incurred under such AAU or in connection with covering any such short position
to require you to repurchase Securities as specified in Section 5.2 hereof. For
the avoidance of doubt, unless otherwise agreed in a Wire or an Intersyndicate
Agreement, the Manager's authority to purchase Securities or Other Securities,
for long account, pursuant to Section 5.1 hereof, will terminate or be suspended
upon the termination or suspension, as the case may be, of the applicable AAU
(or any provision and or term thereof in respect of trading, price or offering
restrictions as set forth in a Wire that is sent by the Manager following the
time the Securities are released for sale to purchasers) or Article V or Section
5.1 hereof pursuant to this paragraph.
Section 9.2. Delivery or Sale of Securities; Settlement of Accounts. Upon
termination of each AAU, or prior thereto at the Manager's discretion, the
Manager will deliver to you any Securities paid for by you pursuant to Article
VI hereof and held by the Manager for sale pursuant to Section 3.4 or 3.5 hereof
but not sold and paid for and any Securities or Other Securities that are held
by the Manager for your account pursuant to the provisions of Article V hereof
or any Intersyndicate Agreement. Notwithstanding the foregoing, at the
termination of such AAU, if the aggregate initial Offering Price of any such
Securities and the aggregate purchase price of any Other Securities so held and
not sold and paid for does not exceed an amount equal to 20% of the aggregate
initial Offering Price of the Securities, the Manager may, in its discretion,
sell such Securities and Other Securities for the accounts of the several
Underwriters, at such prices, on such terms, at such times, and in such manner
as it may determine. Within the period specified by applicable FINRA Rules or,
if no period is so specified, as soon as practicable after termination of such
AAU, your account will be settled and paid. The Manager may reserve from
distribution such amount as the Manager deems advisable to cover possible
additional expenses. The determination by the Manager of the amount so to be
paid to or by you will be final and conclusive. Any of your funds under the
Manager's control may be held with the Manager's general funds without
accountability for interest.
Notwithstanding any provision of this Master AAU other than Section 10.11
hereof, upon termination of each AAU, or prior thereto at the Manager's
discretion, the Manager may: (i) allocate to the accounts of the Underwriters
the expenses described in Section 7.2 hereof and any losses incurred upon the
sale of Securities or Other Securities pursuant to the applicable AAU or any
Intersyndicate Agreement (including any losses incurred upon the sale of
securities referred to in Section 5.4(ii) hereof), (ii) deliver to the
Underwriters any unsold Securities or Other Securities purchased pursuant to
Section 5.1 hereof or any Intersyndicate Agreement, and (iii) deliver to the
Underwriters any unsold Securities purchased pursuant to the applicable
Underwriting Agreement, in each case in the Manager's discretion. The only
limitations on such discretion will be as follows: (a) no Underwriter that is
not the Manager or a Co-Manager will bear more than its share of such expenses,
losses, or Securities (such share will not exceed such Underwriter's
Underwriting Percentage and will be determined pro rata among all such
Underwriters based on their Underwriting Percentages), (b) no such Underwriter
will receive Securities that, together with any Securities purchased by such
Underwriter pursuant to Article VI (but excluding any Securities that such
-14-
Underwriter is required to repurchase pursuant to Section 5.2 hereof) exceed
such Underwriter's Original Underwriting Obligation, and (c) no Co-Manager will
bear more than its share of such expenses, losses, or Securities (such share to
be determined pro rata among the Manager and all Co-Managers based on their
Underwriting Percentages). If any Securities or Other Securities returned to you
pursuant to clause (ii) or (iii) above were not paid for by you pursuant to
Article VI hereof, you will pay to the Manager an amount per security equal to
the amount set forth in clause (i) of Article VI, in the case of Securities
returned to you pursuant to clause (iii) above, or the purchase price of such
securities, in the case of Securities or Other Securities returned to you
pursuant to clause (ii) above.
Section 9.3. Certain Other Expenses. You will pay your Underwriting
Percentage of: (i) all expenses incurred by the Manager in investigating,
preparing to defend, and defending against any action, claim, or proceeding
which is asserted, threatened, or instituted by any party, including any
governmental or regulatory body (each, an "Action"), relating to: (A) the
Registration Statement, any Preliminary Prospectus or Prospectus (and any
amendment or supplement thereto), any Preliminary Offering Circular or Offering
Circular (and any amendment or supplement thereto), any Supplemental Materials,
any Issuer Free Writing Prospectus, and any ABS Underwriter Derived Information
used by any Underwriter other than the Manager, (B) the violation of any
applicable restrictions on the offer, sale, resale, or purchase of Securities or
Other Securities imposed by U.S. Federal or state laws or non-U.S. laws and the
rules and regulations of any regulatory body promulgated thereunder or pursuant
to the terms of the applicable AAU, the Underwriting Agreement, or any
Intersyndicate Agreement, and (C) any claim that the Underwriters constitute a
partnership, an association, or an unincorporated business or other separate
entity, and (ii) any Losses (as defined in Section 9.4 hereof) incurred by the
Manager in respect of any such Action, whether such Loss will be the result of a
judgment or arbitrator's determination or as a result of any settlement agreed
to by the Manager. Notwithstanding the foregoing, you will not be required to
pay your Underwriting Percentage of any such expense or liability: (1) to the
extent that such expense or liability was caused by the Manager's gross
negligence or willful misconduct as determined in a final judgment of a court of
competent jurisdiction; (2) as to which, and to the extent, the Manager actually
receives (a) indemnity pursuant to Section 9.4 hereof, (b) contribution pursuant
to Section 9.5 hereof, (c) indemnity or contribution pursuant to the
Underwriting Agreement, or (d) damages from an Underwriter for breach of its
representations, warranties, agreements, or covenants contained in the
applicable AAU; or (3) of the Manager (other than fees of Syndicate Counsel)
that relates to a settlement entered into by the Manager on a basis that results
in a settlement of such Action against it and fewer than all the Underwriters.
None of the foregoing provisions of this Section 9.3 will relieve any defaulting
or breaching Underwriter from liability for its defaults or breach. Failure of
any party to give notice under Section 9.10 hereof will not relieve any
Underwriter of an obligation to pay expenses pursuant to the provisions of this
Section 9.3.
Section 9.4. Indemnification. Notwithstanding any settlement or the
termination of the applicable AAU, you agree to indemnify and hold harmless each
other Underwriter and each person, if any, who controls any such Underwriter
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act (each, an "Indemnified Party"), to the extent and upon the terms which
you agree to indemnify and hold harmless any of the Issuer, the Guarantor, the
Seller, any person controlling the Issuer, the Guarantor, the Seller, its
directors, and, in the case of a Registered Offering, its officers who signed
the Registration Statement and, in the case of an Offering other than a
-15-
Registered Offering, its officers, in each case as set forth in the Underwriting
Agreement. You further agree to indemnify and hold harmless each Indemnified
Party from and against any and all losses, claims, damages, liabilities, and
expenses not reimbursed pursuant to Section 9.3 hereof (collectively, "Losses")
related to, arising out of, or in connection with the breach or violation by you
of the terms of Section 3.3 hereof, including any and all Losses under Section 5
of the 1933 Act, and any litigation, investigation, and proceeding
(collectively, "Litigation") relating to any of the foregoing. You will also
reimburse each such Indemnified Party upon demand for all expenses, including
fees and expenses of counsel, as they are incurred, in connection with
investigating, preparing for, or defending any of the foregoing. You will
indemnify and hold harmless each Indemnified Party from and against any and all
Losses related to, arising out of, or in connection with, any untrue statement
or alleged untrue statement of a material fact contained in any Underwriter Free
Writing Prospectus or Supplemental Material of yours or Unauthorized Material
used by you, or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and any Litigation relating to any of the foregoing, and to
reimburse each such Indemnified Party upon demand for all expenses, including
fees and expenses of counsel, as they are incurred, in connection with
investigating, preparing for, or defending any of the foregoing. In addition,
you will indemnify and hold harmless each Indemnified Party from and against any
and all Losses related to, arising out of, or in connection with any untrue
statement or alleged untrue statement of a material fact contained in any ABS
Underwriter Derived Information used by you, or any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and any Litigation relating to any
of the foregoing, and to reimburse each such Indemnified Party upon demand for
all expenses, including fees and expenses of counsel, as they are incurred, in
connection with investigating, preparing for, or defending any of the foregoing;
provided, however, that any Losses, joint or several, paid or incurred by any
Underwriter, arising out of or based upon any ABS Underwriter Derived
Information which was used only by such Underwriter, or in connection with the
preparation of which an Underwriter is found to have acted with gross negligence
or willful misconduct in a final judgment of a court of competent jurisdiction,
will be paid solely by such Underwriter.
Each Underwriter will further indemnify and hold harmless any investment
banking firm identified in a Wire as the qualified independent underwriter as
defined in FINRA Rule 5121 or any successor rule thereto (in such capacity, a
"QIU") for an Offering and each person, if any, who controls such QIU within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, from
and against any and all Losses related to, arising out of, or in connection with
such investment banking firm's activities as QIU for the Offering. Each
Underwriter will reimburse such QIU for all expenses, including fees and
expenses of counsel, as they are incurred, in connection with investigating,
preparing for, and defending any Action related to, arising out of, or in
connection with such QIU's activities as a QIU for the Offering. Each
Underwriter will be responsible for its Underwriting Percentage of any amount
due to such QIU on account of the foregoing indemnity and reimbursement. Such
QIU will have no additional liability to any Underwriter or otherwise as a
result of its serving as QIU in connection with the Offering. To the extent the
indemnification provided to a QIU under this Section 9.4 is unavailable to such
QIU or is insufficient in respect of any Losses related thereto, whether as a
matter of law or public policy or as a result of the default of any Underwriter
-16-
in performing its obligations under this Section 9.4, each other Underwriter
will contribute to the amount paid or payable by such QIU as a result of such
Losses related thereto in proportion to its Underwriting Percentage.
Section 9.5. Contribution. Notwithstanding any settlement or the
termination of the applicable AAU, you will pay upon request of the Manager, as
contribution, your Underwriting Percentage of any Losses, joint or several, paid
or incurred by any Underwriter to any person other than an Underwriter, arising
out of or in connection with the breach or violation of the terms of Section 3.3
hereof, including any and all Losses under Section 5 of the 1933 Act, and any
Litigation relating to the foregoing. Further, you will pay, upon request of the
Manager, your Underwriting Percentage of any Losses, joint or several, paid or
incurred by any Underwriter to any person other than an Underwriter, arising out
of or in connection with any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary
Prospectus or Prospectus (and any amendment or supplement thereto), any
Preliminary Offering Circular or Offering Circular (and any amendment or
supplement thereto), any Issuer Free Writing Prospectus, any Supplemental
Materials, any other materials prepared or used by an Underwriter in accordance
with Section 3.3 hereof, or any Underwriter Free Writing Prospectus of yours or
Unauthorized Material used by you, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading (other than an untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with information furnished to the Company In Writing by the
Underwriter on whose behalf the request for contribution is being made expressly
for use therein), or any act or omission to act or any alleged act or omission
to act by the Manager or, if applicable, a Representative, as the Manager or a
Representative, in connection with any transaction contemplated by this
Agreement or undertaken in preparing for the purchase, sale, and delivery of the
Securities (provided, that you will not be required to pay in any such case to
the extent that any such Loss resulted from the Manager's or such
Representative's gross negligence or willful misconduct as determined in a final
judgment of a court of competent jurisdiction), and your Underwriting Percentage
of any legal or other expenses, including fees and expenses of counsel, as they
are incurred, reasonably incurred by the Underwriter (with the approval of the
Manager) on whose behalf the request for contribution is being made in
connection with investigating or defending any such Loss or any action in
respect thereof; provided, however, that no request will be made on behalf of
any Underwriter guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) from any Underwriter who was not guilty of such
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act); provided, further, that any Losses, joint or several, paid or incurred by
any Underwriter, arising out of or based upon such Underwriter's Underwriter
Free Writing Prospectus that does not breach Section 3.3 hereof, will be paid by
only the Underwriters that used such Underwriter Free Writing Prospectus (the
"Contributing Underwriters"), and the amount to be paid by each Contributing
Underwriter will be determined pro rata among the Contributing Underwriters
based on their Underwriting Percentages. None of the foregoing provisions of
this Section 9.5 will relieve any defaulting or breaching Underwriter from
liability for its defaults or breach.
In addition, you will pay your Underwriting Percentage of any Losses,
joint or several, paid or incurred by any Underwriter to any person other than
an Underwriter, arising out of or in connection with any untrue statement or
-17-
alleged untrue statement of a material fact contained in any ABS Underwriter
Derived Information, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading (other than an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with information furnished to the Company In Writing by the
Underwriter on whose behalf the request for contribution is being made expressly
for use therein) and your Underwriting Percentage of any expenses, including
fees and expenses of counsel, as they are incurred, reasonably incurred by the
Underwriter (with the approval of the Manager) on whose behalf the request for
contribution is being made in connection with investigating, preparing for, or
defending any such Loss or any action in respect thereof; provided, however,
that any Losses, joint or several, paid or incurred by any Underwriter, arising
out of or based upon any ABS Underwriter Derived Information which was used only
by such Underwriter, or in connection with the preparation of which the
Underwriter is found to have acted with gross negligence or willful misconduct
in a final judgment of a court of competent jurisdiction, will be paid solely by
the Underwriter.
Section 9.6. Separate Counsel. If any Action is asserted or commenced
pursuant to which the indemnity provided in Section 9.4 hereof or the right of
contribution provided in Section 9.5 hereof may apply, the Manager may take such
action in connection therewith as it deems necessary or desirable, including
retention of counsel for the Underwriters ("Syndicate Counsel"), and in its
discretion separate counsel for any particular Underwriter or group of
Underwriters, and the fees and disbursements of any counsel so retained will be
allocated among the several Underwriters as determined by the Manager. Any such
Syndicate Counsel retained by the Manager will be counsel to the Underwriters as
a group and, in the event that: (a) the Manager settles any Action on a basis
that results in the settlement of such Action against it and fewer than all the
Underwriters, or (b)(i) a conflict develops between the Manager and the other
Underwriters, or (ii) differing defenses are available to the other Underwriters
and not available to the Manager, and as a result of either (b)(i) or (b)(ii)
such Syndicate Counsel concludes that it is unable to continue to represent the
Manager and the other Underwriters, then in each such case, after notification
to the Manager and the other Underwriters, Syndicate Counsel will remain counsel
to the other Underwriters and will withdraw as counsel to the Manager. The
Manager hereby consents to such arrangement and undertakes to take steps to: (i)
ensure that any engagement letters with Syndicate Counsel are consistent with
such arrangement; (ii) issue a notice to all other Underwriters promptly
following receipt of any advice (whether oral or written) from Syndicate Counsel
regarding its inability to represent the Manager and the other Underwriters
jointly; and (iii) facilitate Syndicate Counsel's continued representation of
the other Underwriters. Any Underwriter may elect to retain at its own expense
its own counsel and, on advice of such counsel, may settle or consent to the
settlement of any such Action, but only in compliance with Section 9.7 hereof,
and in each case, only after notification to every other Underwriter. The
Manager may settle or consent to the settlement of any such Action, but only in
compliance with Section 9.7 hereof.
Section 9.7. Settlement of Actions. Neither the Manager nor any other
Underwriter party to this Master AAU may settle or agree to settle any Action
related to or arising out of the Offering, nor may any other Underwriter settle
or agree to settle any such Action without the consent of the Manager, nor may
any other Underwriter seek the Manager's consent to any such settlement
-18-
agreement, nor may the Manager consent to any such settlement agreement, unless:
(A) the Manager, together with such other Underwriters as constitute a majority
in aggregate interest based on the Underwriting Percentage of the Underwriters
as a whole (including the Manager's interest), approve the settlement of such
Action, in which case the Manager is authorized to settle for all Underwriters;
provided, however, that the settlement agreement results in the settlement of
the Action against all Underwriters raised by the plaintiffs party thereto; or
(B) (i) such settlement agreement expressly provides that the non-settling
Underwriters will be given a judgment credit (or credit in settlement) with
respect to all such Actions for which the non-settling Underwriters may be found
liable (or will pay in subsequent settlement), in an amount that is the greatest
of: (x) the dollar amount paid in such initial settlement to settle such
Actions, (y) the proportionate share of the settling Underwriter's fault in
respect of common damages arising in connection with such Actions as proven at
trial, if applicable, or (z) the amount by which the settling Underwriter would
have been required to make contribution had it not settled, under Sections 9.5
and 11.2 hereof in respect of the final non-appealable judgment (or settlement)
subsequently entered into by the non-settling Underwriters (such greatest amount
of either (x), (y), or (z), the "Judgment Credit");(3) (ii) such settlement
agreement expressly provides that in the event that the applicable court does
not approve the Judgment Credit as part of the settlement, the settlement
agreement will automatically terminate; and (iii) the final judgment entered
with respect to the settlement agreement contains the Judgment Credit.
Section 9.8. Survival. Except as set forth in the last sentence of Section
9.1, your agreements contained in Article V and Sections 3.1, 9.3, 9.4, 9.5,
9.6, 9.7, 9.8, 9.9, 9.10, and 11.2 hereof will remain operative and in full
force and effect regardless of any termination of an AAU and: (a) any
termination of the Underwriting Agreement, (b) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Issuer, the Guarantor, the Seller, its directors or officers, or
any person controlling the Issuer, the Guarantor or the Seller, and (c)
acceptance of any payment for any Securities.
Section 9.9. Replacement of Manager. If at any time after any Action is
brought the Manager settles the Action on a basis that results in the settlement
of such Action against it and fewer than all the Underwriters (whether or not
such settlement complies with Section 9.7 hereof), the Manager will, at such
time, for purposes of Sections 9.3, 9.4, 9.5, 9.6, and 9.7 hereof, cease to be
the Manager. The non-settling Underwriters will, by vote of holders of a
-------------------
3 Seeks to ensure that there is no harm to non-settling Underwriter due to
settlement. For example, assume that plaintiffs have suffered $1,000 in
damage in a case in which the Underwriters are 50% at fault and other
defendants, all of whom are insolvent, are 50% at fault. Further assume
that there were 2 Underwriters, each which underwrote 50% of the offering,
and they were equally at fault. If neither Underwriter settles, then each
would be required to pay $500 to satisfy the $1,000 verdict for which they
are jointly and severally liable (or, if one paid $1,000, Section 9.5
would obligate the other to contribute $500 towards such payment). If the
first Underwriter settles for $100, then the second Underwriter will
obtain a judgment credit of $500, being equal to the greater of: (a)
settlement amount ($100), (b) the first Underwriter's fault ($250), and
(c) the amount which the settling Underwriters would have been required to
contribute under the contribution provisions ($500). This formula ensures
that the second Underwriter is not harmed by the settlement. By contrast,
the judgment credit applied in WorldCom ignored clause (c), resulting in a
credit of only $250 and leading the non-settling Underwriter to pay $750,
or $250 more than had the first Underwriter not settled.
-19-
majority of the Underwriting Percentage of such non-settling Underwriters,
select a new Manager, which will become the new "Manager" for all purposes of
Sections 9.3, 9.4., 9.5, 9.6, and 9.7 hereof as well as this section; provided
that the non-settling Underwriter(s) with the largest Underwriting Percentage
will act as Manager until such vote occurs and a new Manager is selected.(4)
Notwithstanding such a settlement, the Manager and the other settling
Underwriters will remain obligated to the non-settling Underwriters to assist
and cooperate fully, in good faith, and at their own expense, in the defense of
any Actions, including, without limitation, by providing, upon reasonable
request of any non-settling Underwriter, and without the necessity of court
process, access to or copies of all relevant records, and reasonable access to
all witnesses under control of the Manager or the other settling Underwriters,
for the purpose of interviews, depositions, and testimony at trial, subject in
each case to the applicable legal and procedural obligations of such Manager and
such other settling Underwriter.
In addition, if at any time, the Manager is unwilling or unable for any
reason to assume or discharge its duties as Manager under the applicable AAU,
whether resulting from its insolvency (voluntary or involuntary), resignation or
otherwise, to the extent permitted by applicable law, the remaining Underwriters
will, by vote of holders of a majority of the Underwriting Percentage of such
Underwriters, be entitled to select a new Manager, which will become the new
Manager for all purposes under this Agreement.(5) Notwithstanding the foregoing,
a Manager replaced pursuant to this Section 9.9 shall continue to benefit from
and be subject to all other terms and conditions of this Agreement applicable to
an Underwriter.
Section 9.10. Notice. When the Manager receives notice of the assertion of
any Action to which the provisions of Sections 9.4, 9.5, 9.6, or 9.7 hereof
would apply, it will give prompt notice thereof to each Underwriter, and
whenever an Underwriter receives notice of the assertion of any claim or
commencement of any Action to which the provisions of Sections 9.4, 9.5, 9.6, or
9.7 hereof would apply, such Underwriter will give prompt notice thereof to the
Manager. The Manager also will furnish each Underwriter with periodic reports,
at such times as it deems appropriate, as to the status of such Action, and the
actions taken by it in connection therewith. If the Manager or any other
Underwriter engages in any settlement discussion that involves or contemplates
settlement on any basis other than settlement of all Actions against all
Underwriters on a pro rata basis according to their Underwriting Percentages,
the Manager (or other Underwriter engaging in such discussions) will notify all
other Underwriters promptly and provide reasonable details about such
discussions.
-------------------
4 Permits new Manager to replace settling Manager and manage the
litigation-related provisions of this agreement.
5 Permits new Manager to replace insolvent Manager and manage all aspects of
this MAAU.
-20-
ARTICLE X
REPRESENTATIONS AND COVENANTS OF UNDERWRITERS
Section 10.1. Knowledge of Offering. You acknowledge that it is your
responsibility to examine the Registration Statement, the Prospectus, or the
Offering Circular, as the case may be, any amendment or supplement thereto
relating to the Offering, any Preliminary Prospectus or Preliminary Offering
Circular, and the material, if any, incorporated by reference therein, any
Issuer Free Writing Prospectus, any Supplemental Materials, and any ABS
Underwriter Derived Information, and you will familiarize yourself with the
terms of the Securities, any applicable Indenture, and the other terms of the
Offering thereof which are to be reflected in the Prospectus or the Offering
Circular, as the case may be, and the applicable AAU and Underwriting Agreement.
The Manager is authorized, with the advice of counsel for the Underwriters, to
approve on your behalf any amendments or supplements to the documents described
in the preceding sentence.
Section 10.2. Accuracy of Underwriters' Information. You confirm that the
information that you have given and are deemed to have given in response to the
Underwriters' Questionnaire attached as Exhibit A hereto (and to any other
questions addressed to you in the Invitation Wire or other Wires), which
information has been furnished to the Issuer for use in the Registration
Statement, Prospectus, or Offering Circular, as the case may be, or has
otherwise been relied upon in connection with the Offering, is complete and
accurate. You will notify the Manager immediately of any development before the
termination of the applicable AAU which makes untrue or incomplete any
information that you have given or are deemed to have given in response to the
Underwriters' Questionnaire (or such other questions).
Section 10.3. Name; Address. Unless you have promptly notified the Manager
In Writing otherwise, your name as it should appear in the Registration
Statement, Prospectus or Offering Circular and any advertisement, if different,
and your address, are as set forth on the signature pages hereof.
Section 10.4. Compliance with Capital Requirements. You represent that
your commitment to purchase the Securities will not result in a violation of the
financial responsibility requirements of Rule 15c3-1 under the 1934 Act or of
any similar provision of any applicable rules of any securities exchange to
which you are subject or, if you are a financial institution subject to
regulation by the Board of Governors of the U.S. Federal Reserve System, the
U.S. Comptroller of the Currency, or the U.S. Federal Deposit Insurance
Corporation, will not place you in violation of any applicable capital
requirements or restrictions of such regulator or any other regulator to which
you are subject.
Section 10.5. FINRA Requirements. (A) You represent that you are a member
in good standing of FINRA, or a non-U.S. bank, broker, dealer, or institution
not eligible for membership in FINRA or a Bank.
(i) If you are a member of FINRA, you will comply with all
applicable rules of FINRA in respect of any Offering of Securities,
including, without limitation, the requirements of FINRA Rules 5110, 5121,
-21-
5130, 5131 and 5141 (to the extent any or all such rules are applicable to
the particular Offering).
(ii) If you are a non-U.S. bank, broker, dealer, or other non-U.S.
institution not eligible for membership in FINRA, you represent that you
are not required to be registered as a broker or dealer under the ▇▇▇▇ ▇▇▇
and you will not make any offers or sales of the Securities in, or to
nationals or residents of, the United States, its territories, or its
possessions, except to the extent permitted by Rule 15a-6 under the 1934
Act (or any successor rule thereto adopted by the SEC). In making any
offers or sales of the Securities you also agree to comply with the
requirements of the following FINRA rules (including any successor rules
thereto adopted by FINRA): (a) to the extent that you are acting, in
respect of offers or sales of the Securities, as a "conduit" for, or are
receiving in connection with such offers and sales any selling
commissions, discounts, allowances or other compensation from, or are
otherwise being directed with respect to allocations or disposition of the
Securities by, a FINRA member, FINRA Rule 5130 and FINRA Rule 5141 as
though you are a member of FINRA, and (b) NASD Conduct Rule 2420(c), as
that Rule applies to a non-member broker/dealer in a non-U.S. country.
(iii) If you are a Bank, you agree that (a) to the extent you are
acting, in respect of offers or sales of the Securities, as a "conduit"
for, or are receiving in connection with such offers and sales any selling
commissions, discounts, allowances or other compensation from, or are
otherwise being directed with respect to allocations or disposition of the
Securities by, a FINRA member, you will comply with FINRA Rules 5130 and
5141 as though you are a member of FINRA, and (b) you will not accept any
portion of the management fee paid by the Underwriters with respect to any
Offering or, in connection with any Offering of Securities that do not
constitute "exempted securities" within the meaning of Section 3(a)(12) of
the 1934 Act, or purchase any Securities at a discount from the offering
price from any Underwriter or Dealer or otherwise accept any Fees and
Commissions from any Underwriter or Dealer, which in any such case is not
permitted under FINRA rules (including, without limitation, NASD Conduct
Rule 2420 or any successor rule thereto adopted by FINRA) or would subject
you to registration and regulation as a "broker" or "dealer" under Section
3(a)(4) or 3(a)(5) of the 1934 Act.
(B) With respect to any Offering of Securities that constitutes a "new
issue" under FINRA Rule 5131, you agree that, with respect to any Securities
trading at a premium to the public offering price that are returned by a
purchaser (the "Returned Securities") to you after secondary market trading
commences, you will promptly consult with the Manager or Co-Manager that has
been appointed to manage the syndicate short position for that Offering (the
"Designated Syndicate Agent") to determine the appropriate treatment of the
Returned Securities under FINRA Rule 5131(d)(3), and agree to (i) return the
Returned Shares to the Designated Syndicate Agent if directed to do so by that
entity, or (ii) if no such direction has been provided by the Designated
Syndicate Agent, to comply with the provisions of FINRA Rule 5131(d)(3)(B) with
respect to the disposition of the Returned Securities.
-22-
Section 10.6. Further State Notice. The Manager will file a Further State
Notice with the Department of State of New York, if required.
Section 10.7. Compliance with Rule 15c2-8. In the case of a Registered
Offering and any other Offering to which the provisions of Rule 15c2-8 under the
1934 Act are made applicable pursuant to the AAU or otherwise, you will comply
with such Rule in connection with the Offering. In the case of an Offering other
than a Registered Offering, you will comply with applicable Federal and state
laws and the applicable rules and regulations of any regulatory body promulgated
thereunder governing the use and distribution of offering circulars by
underwriters.
Section 10.8. Discretionary Accounts. In the case of a Registered Offering
of Securities issued by an Issuer that was not, immediately prior to the filing
of the Registration Statement, subject to the requirements of Section 13(d) or
15(d) of the 1934 Act, you will not make sales to any account over which you
exercise discretionary authority in connection with such sale, except as
otherwise permitted by the applicable AAU for such Offering.
Section 10.9. Offering Restrictions. You will not make any offers or sales
of Securities or any Other Securities in jurisdictions outside the United States
except under circumstances that will result in compliance with (i) applicable
laws, including private placement requirements, in each such jurisdiction and
(ii) the restrictions on offers or sales set forth in any AAU or the Prospectus,
Preliminary Prospectus, Offering Circular, or Preliminary Offering Circular, as
the case may be.
It is understood that, except as specified in the Prospectus or Offering
Circular or applicable AAU, no action has been taken by the Manager, the Issuer,
the Guarantor, or the Seller to permit you to offer Securities in any
jurisdiction other than the United States, in the case of a Registered Offering,
where action would be required for such purpose.
Section 10.10. Representations, Warranties, and Agreements. You will make
to each other Underwriter participating in an Offering the same representations,
warranties, and agreements, if any, made by the Underwriters to the Issuer, the
Guarantor, or the Seller in the applicable Underwriting Agreement or any
Intersyndicate Agreement, and you authorize the Manager to make such
representations, warranties, and agreements to the Issuer, the Guarantor, or the
Seller on your behalf.
Section 10.11. Limitation on the Authority of the Manager to Purchase and
Sell Securities for the Account of Certain Underwriters. Notwithstanding any
provision of this AAU authorizing the Manager to purchase or sell any Securities
or Other Securities (including arranging for the sale of Contract Securities) or
over-allot in arranging sales of Securities for the accounts of the several
Underwriters, the Manager may not, in connection with the Offering of any
Securities, make any such purchases, sales, and/or over-allotments for the
account of any Underwriter that, not later than its acceptance of the Invitation
Wire relating to such Offering, has advised the Manager that, due to its status
as, or relationship to, a bank or bank holding company such purchases, sales,
and/or over-allotments are prohibited by applicable law. If any Underwriter so
advises the Manager, the Manager may allocate any such purchases, sales, and
over-allotments (and the related expenses) which otherwise would have been
-23-
allocated to your account based on your respective Underwriting Percentage to
your account based on the ratio of your Original Underwriting Obligation to the
Original Underwriting Obligations of all Underwriters other than the advising
Underwriter or Underwriters, or in such other manner as the Manager will
determine.
Section 10.12. Electronic Distribution. By participating in the Offering
or accepting the Invitation Wire, you will be deemed to be representing that
either: (a) you are not making an on-line distribution; or (b) if you are making
an on-line distribution, you are following procedures for on-line distributions
previously reviewed by members of the Staff of the Division of Corporation
Finance of the Commission, such members raised no objections to the procedures
reviewed, and there have been no material changes to your procedures since that
review.
Section 10.13. Agreement Regarding Oral Due Diligence. By participating in
an Offering, each Underwriter agrees that it, each of its affiliates
participating in an Offering as Underwriter or financial intermediary and each
controlling person of it and each such participating affiliate are bound by the
Agreement Regarding Oral Due Diligence currently in effect between ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and the accounting firm or firms that participate in oral due diligence
in such offering.
ARTICLE XI
DEFAULTING UNDERWRITERS
Section 11.1. Effect of Termination. If the Underwriting Agreement is
terminated as permitted by the terms thereof, your obligations hereunder with
respect to the Offering of the Securities will immediately terminate except: (a)
as set forth in Section 9.8 hereof, (b) that you will remain liable for your
Underwriting Percentage (or such other percentage as may be specified pursuant
to Section 9.2 hereof) of all expenses, and for any purchases or sales which may
have been made for your account pursuant to the provisions of Article V hereof
or any Intersyndicate Agreement, and (c) that such termination will not affect
any obligations of any defaulting or breaching Underwriter.
Section 11.2. Sharing of Liability. If any Underwriter defaults in its
obligations: (a) pursuant to Section 5.1, 5.2 or 5.4 hereof, (b) to pay amounts
charged to its account pursuant to Section 7.1, 7.2, or 8.1 hereof, or (c)
pursuant to Section 9.2, 9.3, 9.4, 9.5, 9.6, or 11.1 hereof, you will assume
your proportionate share (determined on the basis of the respective Underwriting
Percentages of the non-defaulting Underwriters) of such obligations, but no such
assumption will relieve any defaulting Underwriter from liability to the
non-defaulting Underwriters, the Issuer, the Guarantor, or the Seller for its
default.
Section 11.3. Arrangements for Purchases. The Manager is authorized to
arrange for the purchase by others (including the Manager or any other
Underwriter) of any Securities not purchased by any defaulting Underwriter in
accordance with the terms of the applicable Underwriting Agreement or, if the
applicable Underwriting Agreement does not provide arrangements for defaulting
Underwriters, in the discretion of the Manager. If such arrangements are made,
the respective amounts of Securities to be purchased by the remaining
Underwriters and such other person or persons, if any, will be taken as the
-24-
basis for all rights and obligations hereunder, but this will not relieve any
defaulting Underwriter from liability for its default.
ARTICLE XII
MISCELLANEOUS
Section 12.1. Obligations Several. Nothing contained in this Master AAU or
any AAU constitutes you partners with the Manager or with the other
Underwriters, and the obligations of you and each of the other Underwriters are
several and not joint. Each Underwriter elects to be excluded from the
application of Subchapter K, Chapter 1, Subtitle A, of the U.S. Internal Revenue
Code of 1986. Each Underwriter authorizes the Manager, on behalf of such
Underwriter, to execute such evidence of such election as may be required by the
U.S. Internal Revenue Service.
Section 12.2. Liability of Manager. The Manager will not be liable to you
for any act or omission, except for obligations expressly assumed by the Manager
in the applicable AAU.
Section 12.3. Termination of Master AAU. This Master AAU may be terminated
by either party hereto upon five business days' written notice to the other
party; provided, however, that with respect to any Offering for which an AAU was
sent prior to such notice, this Master AAU as it applies to such Offering will
remain in full force and effect and will terminate with respect to such Offering
in accordance with Section 9.1 hereof.
Section 12.4. Governing Law. This Master AAU and each AAU will be governed
by and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed in the State, without giving effect to
principles of conflicts of law. You hereby irrevocably: (a) submit to the
jurisdiction of any court of the State of New York located in the City of New
York or the U.S. District Court for the Southern District of the State of New
York for the purpose of any suit, action, or other proceeding arising out of
this Master AAU, or any of the agreements or transactions contemplated hereby
(each, a "Proceeding"), (b) agree that all claims in respect of any Proceeding
may be heard and determined in any such court, (c) waive, to the fullest extent
permitted by law, any immunity from jurisdiction of any such court or from any
legal process therein, (d) agree not to commence any Proceeding other than in
such courts, and (e) waive, to the fullest extent permitted by law, any claim
that such Proceeding is brought in an inconvenient forum.
Section 12.5. Amendments. This Master AAU may be amended from time to time
by consent of the parties hereto. Your consent will be deemed to have been given
to an amendment to this Master AAU, and such amendment will be effective, five
business days following written notice to you of such amendment if you do not
notify us In Writing prior to the close of business on such fifth business day
that you do not consent to such amendment. Upon effectiveness, the provisions of
this Master AAU as so amended will apply to each AAU thereafter entered into,
except as otherwise specifically provided in any such AAU.
-25-
Section 12.6. Notices. Any notice to any Underwriter will be deemed to
have been duly given if mailed, sent by wire, telecopy or electronic
transmission or other written communication, or delivered in person to such
Underwriter at the address set forth in its Underwriters' Questionnaire, or if
no address is provided in an Underwriters' Questionnaire, then at the address
set forth in reports filed by such Underwriter with FINRA. Any such notice will
take effect upon receipt thereof.
Section 12.7. Severability. In case any provision in this Master AAU is
deemed invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.
Section 12.8. Counterparts. This Master AAU may be executed in any number
of counterparts, each of which will be deemed to be an original, and all of
which taken together constitute one and the same instrument. Transmission by
telecopy of an executed counterpart of this Master AAU will constitute due and
sufficient delivery of such counterpart.
-26-
Please confirm your acceptance of this Master AAU by signing and returning
to us the enclosed duplicate copy hereof.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. LLC
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
(Authorized Officer)
Confirmed and accepted as of _________, 20__
-----------------------------------------
(Legal Name of Underwriter)
-----------------------------------------
(Address)
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
(Authorized Officer)
(If person signing is not an officer or a
partner, please attach instrument of
authorization)
GUIDE TO DEFINED TERMS
TERM SECTION REFERENCE
1933 Act................................................................1.1
1934 Act................................................................3.5
AAU................................................................Foreword
ABS Underwriter Derived Information.....................................2.1
Action..................................................................9.3
Additional Securities...................................................1.1
Bank....................................................................3.5
Co-Managers.............................................................1.1
Commission..............................................................2.1
Contract Securities.....................................................3.1
Contributing Underwriters...............................................9.5
Dealer..................................................................3.5
Designated Syndicate Agent.............................................10.5
DTC.....................................................................5.2
Fees and Commissions....................................................1.1
FINRA...................................................................3.1
Firm Securities.........................................................1.1
Free Writing Prospectus.................................................2.1
Guarantor...............................................................1.1
In Writing..............................................................1.2
Indemnified Party.......................................................9.4
Indenture...............................................................1.1
International Offering..................................................1.1
Intersyndicate Agreement................................................2.3
Invitation Wire....................................................Foreword
Issuer..................................................................1.1
Issuer Free Writing Prospectus..........................................3.3
Issuer Information.................................................3.3, 3.3
Judgment Credit.........................................................9.7
Litigation..............................................................9.4
Losses..................................................................9.4
Manager............................................................9.9, 1.1
Master AAU.........................................................Foreword
NASD....................................................................3.1
Offering...........................................................Foreword
Offering Circular..................................................2.2, 2.2
Offering Date...........................................................3.2
Offering Price..........................................................1.1
Original Underwriting Obligation........................................1.1
Preliminary Offering Circular...........................................2.2
Preliminary Prospectus..................................................2.1
Pricing Date............................................................1.1
-i-
Proceeding.............................................................12.4
Prospectus..............................................................2.1
Purchase Price..........................................................1.1
QIU.....................................................................9.4
Reallowance.............................................................1.1
Registered Offering.....................................................2.1
Registration Statement..................................................2.1
Regulation M............................................................5.1
Representative..........................................................1.1
Returned Securities....................................................10.5
Securities..............................................................1.1
Securities Offering Reform Release......................................2.1
Seller..................................................................1.1
Selling Concession......................................................1.1
Settlement Date.........................................................1.1
Supplemental Materials..................................................3.3
Syndicate Counsel.......................................................9.6
Trustee.................................................................1.1
Unauthorized Material...................................................3.3
Underwriter Free Writing Prospectus................................1.1, 1.1
Underwriters' Securities................................................3.1
Underwriting Agreement..................................................1.1
Underwriting Percentage.................................................1.1
Wire...............................................................Foreword
-ii-
EXHIBIT A
UNDERWRITERS' QUESTIONNAIRE
In connection with each Offering governed by the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC
Master Agreement Among Underwriters dated June 1, 2011, except as otherwise
indicated in a timely acceptance of the Invitation Wire pursuant to Section 1.2
of the Master Agreement Among Underwriters ("Master AAU") or already expressly
disclosed in the Preliminary Prospectus or Preliminary Offering Circular, as the
case may be, each Underwriter participating in such Offering severally advises
the Issuer and the other participating Underwriters (all capitalized terms used
herein and not otherwise defined herein will have the meanings given to them in
the Master AAU) as follows:
(a) neither such Underwriter nor any of its directors, officers, or
partners have a material relationship, as "material" is defined in
Regulation C under the 1933 Act, with the Issuer, the Guarantor, or the
Seller;
(b) if the Registration Statement is on Form S-1, neither such
Underwriter nor any "group" (as that term is used in Section 13(d)(3) of
the Securities Exchange Act of 1934) of which such Underwriter is aware is
the beneficial (as that term is used in Section 13(d)(3) of the Securities
Exchange Act of 1934) owner of more than 5% of any class of voting
securities of the Issuer or Guarantor, nor does such Underwriter have any
knowledge that more than 5% of any class of voting securities of the
Issuer or the Guarantor is held or to be held subject to any voting trust
or other similar agreement, nor does such Underwriter have any knowledge
that more than 5% of any class of voting securities of the Issuer or the
Guarantor is held or to be held subject to any voting trust or other
similar agreement;
(c) other than as may be stated in the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC
Master Agreement Among Underwriters dated June 1, 2011, the applicable
AAU, the Intersyndicate Agreement or dealer agreement, if any, the
Prospectus, the Registration Statement, or the Offering Circular, such
Underwriter does not know and has no reason to believe that there is an
intention to over-allot or that the price of any security may be
stabilized to facilitate the offering of the Securities;
(d) other than stated in the Invitation Wire, such Underwriter does
not know of (i) any other discounts or commissions to be allowed or paid
to the Underwriters or of any other items that would be deemed by the
Financial Industry Regulatory Authority, Inc. ("FINRA") to constitute
underwriting compensation for purposes of FINRA Rule 5110, or (ii) any
discounts or commissions to be allowed or paid to dealers, including all
cash, securities, contracts, or other consideration to be received by any
dealer in connection with the sale of the Securities;
(e) such Underwriter has not prepared any report or memorandum for
external use in connection with the Offering;
A-1
(f) if the offer and sale of the Securities are to be registered
under the 1933 Act pursuant to a Registration Statement on Form S-1 or
Form F-1, such Underwriter has not within the past 12 months prepared or
had prepared for such Underwriter any engineering, management, or similar
report or memorandum relating to broad aspects of the business,
operations, or products of the Issuer or the Guarantor. The immediately
preceding sentence does not apply to reports solely comprised of
recommendations to buy, sell, or hold the Issuer's or the Guarantor's
securities, unless such recommendations have changed within the past six
months, or to information already contained in documents filed with the
Commission;
(g) in the case of Registered Offerings and Offerings of Securities
exempt under Section 3 of the 1933 Act, such Underwriter does not have a
"conflict of interest" with the Issuer or the Guarantor under FINRA Rule
5121. In that regard, such Underwriter specifically confirms that, at the
time of such Underwriter's participation in the subject Offering, (A) such
Underwriter is not issuing the Securities in such Offering; (B) neither
the Issuer nor the Guarantor controls, is controlled by or is under common
control (as the term "control" is defined in FINRA Rule 5121(f)(6)) with
such Underwriter or such Underwriter's "associated persons" (as such term
is defined by FINRA); (C) less than five percent of the net proceeds of
the Offering, not including Fees and Commissions, are intended to be: (i)
used to reduce or retire the balance of a loan or credit facility extended
by such Underwriter, its "affiliates" and its "associated persons" (as
such terms are defined by FINRA), in the aggregate; or (ii) otherwise
directed to such Underwriter, its affiliates and associated persons, in
the aggregate, and (D) as a result of such Offering and any transactions
contemplated at the time of such Offering: (i) such Underwriter will not
become an affiliate of the Issuer or Guarantor; (ii) such Underwriter will
not become publicly owned; and (iii) the Issuer or Guarantor will not
become a FINRA member or form a broker-dealer subsidiary. Furthermore,
such Underwriter specifically confirms that such Underwriter does not, (a)
beneficially own 10% or more of the Issuer's or Guarantor's outstanding
"common equity," "preferred equity" or "subordinated debt" (as each such
term is defined in FINRA Rule 5121), including the right to receive such
securities or subordinated debt within 60 days of such Underwriter's
participation in the Offering; (b) in the case of an Issuer or Guarantor
which is a partnership, beneficially own a general, limited or special
partnership interest in 10% or more of the Issuer's or Guarantor's
distributable profits or losses, or a right to receive an interest in such
distributable profits or losses within 60 days of such Underwriter's
participation in the Offering; or (c) have the power to direct or cause
the direction of the management or policies of the Issuer or the
Guarantor;
(h) other than as stated in the Invitation Wire, in the case of
Registered Offerings and Offerings of Securities exempt under Section 3 of
the 1933 Act, neither such Underwriter nor any of its directors, officers,
partners, or "persons associated with" such Underwriter (as defined by
FINRA) nor, to such Underwriter's knowledge, any "related person" (defined
by FINRA to include counsel, financial consultants and advisors, finders,
members of the selling or distribution group, any FINRA member
participating in the offering, and any other persons associated with or
related to and members of the immediate family of any of the foregoing) or
A-2
any other broker-dealer: (A) within the last six months have purchased in
private transactions, or intend before, at, or within six months after the
commencement of the public offering of the Securities to purchase in
private transactions, any securities of the Issuer, the Guarantor, or any
Issuer Related Party (as hereinafter defined), (B) within the last 6
months have had any dealings with the Issuer, the Guarantor, any Seller,
or any subsidiary or controlling person thereof (other than relating to
the proposed Underwriting Agreement) as to which documents or information
are required to be filed with FINRA, or (C) during the 6 months
immediately preceding the filing of the Registration Statement (or, if
there is none, the Offering Circular), have entered into any arrangement
which provided or provides for the receipt of any item of value
(including, but not limited to, cash payments, expense reimbursements and
rights of first refusal to participate in a future public offering,
private placement or other financing transaction) and/or the transfer of
any warrants, options, or other securities from the Issuer, the Guarantor,
or any Issuer Related Party to you or any related person;
(i) in the case of Registered Offerings and Offerings of Securities
exempt under Section 3 of the 1933 Act, there is no association or
affiliation between such Underwriter and (A) any officer or director of
the Issuer, the Guarantor or, any Issuer Related Party, or (B) any
securityholder of 5% or more (or, in the case of an initial public
offering of equity securities, any securityholder) of any class of
securities of the Issuer, the Guarantor, or an Issuer Related Party; it
being understood that for purposes of paragraph (i) above and this
paragraph (j), the term "Issuer Related Party" includes any Seller, any
affiliate of the Issuer, the Guarantor, or a Seller, and the officers or
general partners, directors, employees, and securityholders thereof;
(j) in the case of Registered Offerings and Offerings of Securities
exempt under Section 3 of the 1933 Act, and if the Securities are not
issued by a real estate investment trust, no portion of the net offering
proceeds from the sale of the Securities will be paid to such Underwriter
or any of its affiliates or "persons associated with" such Underwriter (as
defined by FINRA) or members of the immediate family of any such person;
and
(k) in the case of Securities which are debt securities whose offer
and sale is to be registered under the 1933 Act, such Underwriter is not
an affiliate (as defined in Rule 0-2 under the Trust Indenture Act of
1939) of the Trustee for the Securities or of its parent, if any. Neither
the Trustee nor its parent, if any, nor any of their directors or
executive officers is a "director, officer, partner, employee, appointee,
or representative" of such Underwriter (as those terms are defined in the
Trust Indenture Act of 1939 or in the relevant instructions to Form T-1).
Such Underwriter and its directors, partners, and executive officers,
taken as a group, did not on the date specified in the Invitation, and do
not, own beneficially 1% or more of the shares of any class of voting
securities of the Trustee or of its parent, if any. If such Underwriter is
a corporation, it does not have outstanding and has not assumed or
guaranteed any securities issued otherwise than in its present corporate
name.
A-3
If an Underwriter notes an exception with respect to material of the type
referred to in clauses (e) and (f), such underwriter will send three copies of
each item of such material, together with a statement as to distribution,
identifying classes of recipients and the number of copies distributed to each
such class, and, if relevant, the number of equity securities or the face value
of debt securities owned by such person, the date such securities were acquired,
and the price paid for such securities to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Attention:
Syndicate Department, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
A-4