▇▇▇▇▇ FARGO SECURITIES, LLC
MASTER AGREEMENT AMONG UNDERWRITERS
REGISTERED SEC OFFERINGS
(INCLUDING MULTIPLE SYNDICATE OFFERINGS)
AND
EXEMPT OFFERINGS
(OTHER THAN OFFERINGS OF MUNICIPAL SECURITIES)
June 5, 2014
This Master Agreement Among Underwriters (this "MASTER AAU"), dated as of
June 5, 2014, is by and between ▇▇▇▇▇ Fargo Securities, LLC ("▇▇▇▇▇ FARGO
SECURITIES," "WE" or "US") 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:
I. GENERAL
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 Securities 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
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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 ▇▇▇▇▇ Fargo Securities, 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 Securities 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.
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
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
-----------------------------
(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).
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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.
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.
II. OFFERING MATERIALS; OFFERING AGREEMENTS
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
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
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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").
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).
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 International Offering,
respectively (each, an "INTERSYNDICATE AGREEMENT"), and to execute and deliver
any such Intersyndicate Agreement.
III. MANAGER'S AUTHORITY
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
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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"), 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%
(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.
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."
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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. You will abide by any restrictions in the Underwriting
Agreement relating to any general solicitation, announcement, advertising, or
publicity in addition to the restrictions in this Section 3.3. Further, 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 that
would be inconsistent with such exemption. 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 10.10, 10.11, and 10.12 hereof, you represent
that you have not, and you agree that you will not, in connection with the
offering and sale of the Securities in the Offering, 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"),
(iii) any "issuer free writing prospectus" (as defined in Rule
433(h) under the 1933 Act, an "ISSUER FREE WRITING PROSPECTUS"), the
issuance or use of which 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,
(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:
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(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 is referred to herein as an "UNDERWRITER FREE
WRITING PROSPECTUS"). 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,
(vi) any written communication prepared by or on behalf of, or
used or referred to by, the Issuer, the conveyance of which by you
in reliance on Section 5(d) of the 1933 Act has been permitted or
consented to by the Issuer and the Manager (a "WRITTEN
TESTING-THE-WATERS COMMUNICATION"), so long as (A) you convey any
such Written Testing-the-Waters Communication solely to entities
that are qualified institutional buyers within the meaning of Rule
144A under the 1933 Act or institutions that are accredited
investors within the meaning of Rule 501 under the 1933 Act, and (B)
you otherwise comply with the requirements of Section 5(d) of the
1933 Act, and
(vii) any written communication not otherwise permitted under
clauses (i) through (vi) above, the conveyance of which by you has
been permitted or consented to by the Manager (a "MANAGER-APPROVED
COMMUNICATION").
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.
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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.
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.
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.
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
applicable Intersyndicate Agreement (the securities referred to in clauses (b)
and (c) above being referred to collectively as the "OTHER SECURITIES").
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IV. DELAYED DELIVERY CONTRACTS
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.
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.
V. PURCHASE AND SALE OF SECURITIES
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 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
11
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 under the 1934 Act
not later than the date specified therein.
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
total cost of such purchase, including transfer taxes, accrued interest,
dividends, and commissions, if any.
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
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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.
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.
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 ▇▇▇▇▇ Fargo Securities,
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
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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.
VII. EXPENSES
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.
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 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.
VIII. MANAGEMENT OF SECURITIES AND FUNDS
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,
14
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.
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.
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.
IX. TERMINATION; INDEMNIFICATION; CONTRIBUTION; SETTLEMENT
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
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.
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
15
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 10.12
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
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.
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, any Written Testing-the-Waters Communication, 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
16
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.
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 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, Manager-Approved
Communication or Supplemental Material used by you, or any research report in
the form of a written communication (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇)
used by you in reliance upon the penultimate sentence of Section 2(a)(3) of the
1933 Act prior to completion of the distribution of an initial public offering
(a "WRITTEN RESEARCH REPORT"), 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
17
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
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.
For the avoidance of doubt, references to an "Underwriter" or "you" in
this Section 9.4 shall include the Manager in its role as an Underwriter.
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 Indemnified Party to any person other than an Indemnified Party, 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, as contribution, your Underwriting Percentage of any Losses, joint or
several, paid or incurred by any Indemnified Party to any person other than an
Indemnified Party, 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 Supplemental Materials, any Issuer
Free Writing Prospectus, any Written Testing-the-Waters Communication, any other
materials prepared or used by an Underwriter in accordance with Section 3.3
hereof, or any Underwriter Free Writing Prospectus, Manager-Approved
Communication or Written Research Report, 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
18
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 Indemnified Party (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 Indemnified
Party guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) from any Indemnified Party 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 Indemnified Party, arising out of or based upon an Underwriter's Underwriter
Free Writing Prospectus, Manager-Approved Communication, Written Research Report
or Supplemental Material, will be paid by only the Underwriters that used such
Underwriter Free Writing Prospectus, Manager-Approved Communication, Written
Research Report or Supplemental Material, as the case may be (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 upon request of the Manager, as contribution,
your Underwriting Percentage of any Losses, joint or several, paid or incurred
by any Indemnified Party to any person other than an Indemnified Party, 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, 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 Indemnified Party (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.
For the avoidance of doubt, references to an "Underwriter" or "you" in
this Section 9.5 shall include the Manager in its role as an Underwriter.
19
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.
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 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
20
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.
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.
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 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.
-----------------------------
(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 two 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.
(4) Permits new Manager to replace settling Manager and manage the
litigation-related provisions of this Agreement.
21
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.
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.
X. REPRESENTATIONS AND COVENANTS OF UNDERWRITERS
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.
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
-----------------------------
(5) Permits new Manager to replace insolvent Manager and manage all aspects of
this Master AAU.
22
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).
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.
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.
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,
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
23
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 Securities 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.
10.6. FATCA CERTIFICATION. If you are a Foreign Financial Institution
("FFI") as that term is defined pursuant to FATCA (as defined below) (including
a U.S. branch of a non-U.S. bank), you represent that you are not, and have not
been identified by the U.S. Internal Revenue Service ("IRS") as, a
nonparticipating FFI as that term is defined pursuant to FATCA. Unless otherwise
agreed, promptly following your acceptance of an AAU for an Offering, but not
later than such Offering's Pricing Date, you will provide us such documents
(including an IRS Form W-8BEN-E or an IRS Form W-8BEN if the instructions to the
IRS Form W-8BEN-E have not been released) as may be necessary to confirm that no
tax is required to be withheld under FATCA in respect of payments to you that we
make or are deemed to make for U.S. federal income tax purposes. If we are
required to make any deduction or withholding pursuant to or on account of FATCA
in respect of payments to you that we make or are deemed to make for U.S.
federal income tax purposes, and we do not so deduct or withhold and a liability
resulting from such failure to withhold or deduct is assessed directly against
us, then you will indemnify us therefor (without duplication of any applicable
indemnification obligation, and without triggering any contribution obligation
of any other Underwriter, with respect thereto under Article IX hereof) and
promptly pay us the amount of such liability (including any related liability
for interest and penalties). "FATCA" means sections 1471 through 1474 of the
U.S. Internal Revenue Code of 1986 (the "CODE"), any current or future
regulations or official interpretations thereof, any agreement entered into
thereunder, or any fiscal or regulatory legislation, rules or practices adopted
pursuant to any intergovernmental agreement entered into in connection with the
implementation thereof.
10.7. FURTHER STATE NOTICE. The Manager will file a Further State Notice
with the Department of State of New York, if required.
24
10.8. 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.
10.9. 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.
10.10. 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.
10.11. 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.
10.12. 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
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.
25
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 ▇▇▇▇▇ Fargo Securities
and the accounting firm or firms that participate in oral due diligence in such
offering.
XI. DEFAULTING UNDERWRITERS
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.
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.
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
basis for all rights and obligations hereunder, but this will not relieve any
defaulting Underwriter from liability for its default.
XII. MISCELLANEOUS
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 Code. Each Underwriter authorizes the Manager,
on behalf of such Underwriter, to execute such evidence of such election as may
be required by the IRS.
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.
26
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.
12.4. GOVERNING LAW; WAIVER OF JURY TRIAL. 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. Each party hereto hereby irrevocably waives any right that it may have to
trial by jury in any action, proceeding or counterclaim arising out of or
relating to this Master AAU and each AAU or the transactions contemplated
thereby.
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.
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.
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.
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.
27
Please confirm your acceptance of this Master AAU by signing and returning
to us the enclosed duplicate copy hereof.
▇▇▇▇▇ FARGO SECURITIES, LLC
By:____________________________
Name:
Title:
(Authorized Officer)
Confirmed and accepted
as of _________________, _____
____________________________
(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)
28
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
Code.................................................................10.6
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
FATCA................................................................10.6
Fees and Commissions..................................................1.1
FFI ................................................................10.6
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
IRS..................................................................10.6
Issuer................................................................1.1
Issuer Free Writing Prospectus........................................3.3
Issuer Information....................................................3.3
Judgment Credit.......................................................9.7
Litigation............................................................9.4
Losses................................................................9.4
Manager...............................................................1.1
Manager-Approved Communication........................................3.3
Master AAU.......................................................Foreword
Offering.........................................................Foreword
Offering Circular.....................................................2.2
Offering Date.........................................................3.2
Offering Price........................................................1.1
Original Underwriting Obligation......................................1.1
Preliminary Offering Circular.........................................2.2
29
Preliminary Prospectus................................................2.1
Pricing Date..........................................................1.1
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
Underwriter Free Writing Prospectus...................................3.3
Underwriters..........................................................1.1
Underwriters' Securities..............................................3.1
Underwriting Agreement................................................1.1
Underwriting Percentage...............................................1.1
▇▇▇▇▇ Fargo Securities...........................................Foreword
Wire.............................................................Foreword
Written Research Report...............................................9.4
Written Testing-the-Waters Communication..............................3.3
EXHIBIT A
▇▇▇▇▇ FARGO SECURITIES, LLC
UNDERWRITERS' QUESTIONNAIRE
In connection with each Offering governed by the ▇▇▇▇▇ Fargo Securities,
LLC Master Agreement Among Underwriters dated June 5, 2014 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:
(i) 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;
(ii) 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;
(iii) other than as may be stated in the ▇▇▇▇▇ Fargo Securities, LLC
Master Agreement Among Underwriters dated June 5, 2014, 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;
(iv) other than as 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;
(v) such Underwriter has not prepared any report or memorandum for
external use in connection with the Offering;
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(vi) 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;
(vii) 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;
(viii) 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
any other broker-dealer: (A) within the last six months have purchased in
private transactions, or intend before, at, or
3
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;
(ix) 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;
(x) 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
(xi) 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.
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
4
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 ▇▇▇▇▇ Fargo Securities, LLC; Attention: Syndicate
Department, at the address noted in the Invitation Wire.