▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY, INC.
MASTER AGREEMENT AMONG UNDERWRITERS
BASIC PROVISIONS FOR OFFERINGS OF SECURITIES
Ladies and Gentlemen:
From time to time ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc., ("We" or the "Manager") may
invite you 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 (an
"Offering") to which this Master Agreement Among Underwriters (the "▇▇▇▇▇▇
▇▇▇▇▇▇ & Company, Inc. Master AAU") shall apply, we will send the information
set forth below in Section 1 (a) to you by one or more wires, telexes,
facsimiles or electronic data transmissions or other written communications
(each a "Wire" and collectively, an "AAU"). Each Wire will indicate that it is a
Wire pursuant to the ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. Master AAU. The Wire inviting
you to participate in an Offering is referred to herein as the "Invitation
Wire." You and We hereby agree that the provisions of the ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
Company, Inc. Master AAU automatically are incorporated by reference in each
AAU, except that any AAU may also exclude or revise such provisions of the
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. Master AAU or contain such additional provisions
as may be specified in the AAU.
1. GENERAL.
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(a) TERMS OF AAU; CERTAIN DEFINITIONS; CONSTRUCTION. Each AAU shall
relate to an Offering and shall 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 the 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 on whose behalf the
Manager executes the Underwriting Agreement (the "Underwriters") and
whether such agreement provides (x) an option to purchase Additional
Securities (as defined below) or (y) for an offering (an "International
Offering") involving two or more syndicates, each of which will offer
and sell Securities subject to such restrictions as shall be specified
in any Intersyndicate Agreement (as defined below) referred to in the
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, or other similar fees, discounts or
commissions (collectively, the "Fees and Commissions") with respect to
the Securities, (v) the proposed pricing date ("Pricing Date") and
settlement date (the "Settlement Date"), (vi) any contractual
restrictions on the offer and sale of the Securities pursuant to the
Underwriting Agreement, Intersyndicate Agreement or otherwise, (vii) any
co-managers for the Offering (the "Co-Managers"), (viii) your proposed
participation in the Offering, (ix) if applicable, the trustee, fiscal
agent or similar agent (the "Trustee") for the indenture, trust
agreement, fiscal agency agreement or similar agreement (the
"Indenture") under which the Securities will be issued and (x) any other
principal terms of the Offering.
The term "Underwriters" includes the Manager and the Co-Managers. The
term "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). The
term "Additional Securities" means the Securities, if any, that the
several Underwriters have an option to purchase under the Underwriting
Agreement to cover over-allotments. The number, amount or percentage of
Firm Securities set forth opposite each Underwriter's name in the
Underwriting Agreement plus any additional Firm Securities that the
Underwriter has become obligated to purchase under the Underwriting
Agreement or Section 9 hereof is hereinafter referred to as the
"Original Purchase Obligation" of the Underwriter. The ratio which such
Original Purchase 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.
References herein to statutory sections, rules, regulations, forms and
interpretive materials shall be deemed to include any successor
provisions.
(b) ACCEPTANCE OF AAU. You shall have accepted an AAU for an Offering if
We receive your acceptance of our invitation to participate in the
Offering before the deadline specified in the Invitation Wire for the
Offering, by wire, telex, facsimile or electronic data transmission or
other written communication (any such manner of communication being
deemed "In Writing" (or orally, if promptly confirmed In Writing)) in
the manner specified in the Invitation Wire. If we receive your timely
acceptance, the AAU shall constitute a valid and binding contract
between us. Your acceptance of the Invitation Wire shall also constitute
acceptance by you of the terms of any subsequent Wire to you relating to
the Offering unless We receive In Writing, within the time and in the
manner specified in the subsequent Wire, a notice from you to the effect
that you do not accept the terms of the subsequent Wire, in which case,
you shall be deemed to have elected not to participate in the Offering.
(c) UNDERWRITERS' QUESTIONNAIRE. Your acceptance of the Invitation Wire
shall 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) 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.
(d) AFFILIATION. ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc is a registered
broker-dealer and operates as a division of Regions Financial
Corporation.
2. OFFERING MATERIALS; OFFERING AGREEMENTS.
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(a) REGISTERED OFFERINGS. In the case of an Offering that will be
registered in whole or in part (a "Registered Offering") under the
Securities Act of 1933, as amended (the "Securities Act"), you
understand that the Issuer has filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a
prospectus relating to the Securities. The term "Registration Statement"
means such registration statement as amended or deemed to be amended
prior to the effective date of the Underwriting Agreement and, in the
event the Issuer files an abbreviated registration statement to register
additional Securities pursuant to Rule 462(b) under the Securities Act,
such abbreviated registration statement. The term "Prospectus" means the
prospectus, together with the final prospectus supplement, if any,
relating to the Offering first used to confirm sales of Securities. In
the case of a Registered Offering that is an International Offering, the
term "Prospectus" shall mean, 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 first used or made available for use to confirm sales
of Securities. The term "Preliminary Prospectus" means any preliminary
prospectus relating to the Offering or any preliminary prospectus
supplement together with a prospectus relating to the Offering. In the
case of a Registered Offering that is an International Offering, the
term "Preliminary Prospectus" shall mean, 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. The terms "Registration
Statement," "Prospectus" and "Preliminary Prospectus" include the
material, if any, incorporated by reference therein. The terms
"Registration Statement," "Prospectus" and "Preliminary Prospectus,"
together with the "Offering Circular," "Preliminary Offering Material"
and "Supplementary Offering Materials" (each defined below) and any
supplements or amendments thereto, are collectively referred to as the
"Offering Documents." We will furnish you, or make arrangements for you
to obtain, copies of each Prospectus and Preliminary Prospectus (but
excluding for this purpose, unless otherwise required pursuant to
regulations under the Securities Act, documents incorporated therein by
reference) as soon as practicable after sufficient quantities have been
made available by the Issuer.
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(b) NON-REGISTERED OFFERINGS. In the case of an Offering other than a
Registered Offering, you understand that no registration statement has
been filed with the Commission. The term "Offering Circular" means an
offering circular or memorandum, if any, or any other written materials
authorized by the Issuer to be used in connection with the Offering. The
term "Preliminary Offering Circular" means a preliminary offering
circular or memorandum, if any, or any other written preliminary
materials authorized by the Issuer to be used in connection with the
Offering. The terms "Offering Circular" and "Preliminary Offering
Circular" shall include the material, if any, incorporated by reference
therein. As soon as practicable after the later of the date of the
Invitation Wire or the date they are made available to us by the Issuer,
We will furnish you (or make available for your review in our office) 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, We will furnish for you, or make arrangements for you to
obtain, as soon as practicable after sufficient quantities thereof are
made available by the Issuer, copies of the final Offering Circular, as
amended or supplemented, if applicable (but excluding for this purpose
documents incorporated therein by reference).
(c) AUTHORITY TO EXECUTE UNDERWRITING AND INTERSYNDICATE AGREEMENTS. You
authorize the Manager, on your behalf, (i) to determine the form of the
Underwriting Agreement and to execute and deliver to the Issuer,
Guarantor or Seller the Underwriting Agreement to purchase (A) up to the
amount of Firm Securities set forth in the applicable AAU and (B) if the
Manager elects on behalf of the several Underwriters to exercise any
option to purchase Additional Securities, up to the amount of Additional
Securities set forth in the applicable AAU, subject, in each case, to
reduction pursuant to Section 4, and (ii) to determine the form of any
agreement or agreements between or among the syndicates participating in
the Offering and International Offering, respectively (each an
"Intersyndicate Agreement"), and to execute and deliver any such
Intersyndicate Agreement.
3. MANAGER'S AUTHORITY.
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(a) AUTHORITY TO DETERMINE 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 Firm Securities and Additional
Securities for the accounts of the several Underwriters pursuant to the
Underwriting Agreement, (ii) to agree, on your behalf and on behalf of
the Co-Managers, to any addition to, change in or waiver of any
provision of, or the termination of, the Underwriting Agreement or any
Intersyndicate Agreement (other than an increase in the Purchase Price
or in your Original Purchase Obligation to purchase Securities, in
either case from that contemplated by the applicable AAU), (iii) to add
or remove prospective Underwriters from the syndicate, or to add to or
remove prospective Dealers (defined below) or Reallowance Dealers from
participation in the Offering, (iv) to exercise, in the Manager's
discretion, all of the authority vested in the Manager in the
Underwriting Agreement and (v) except as described below in this Section
3(a), to take any other action deemed advisable by the Manager in
respect of the Offering (including, without limitation, actions and
communications with the Commission, the National Association of
Securities Dealers, Inc. (the "NASD"), state blue sky or securities
commissions, stock exchanges and other regulatory bodies or
organizations). 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
deems 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 in connection with
the Offering unless such transactions are specified in an applicable AAU
or otherwise consented to by you. You further authorize the Manager,
subject to the provisions of Section 1(b) hereof, (i) to vary the
offering terms of the Securities in effect at any time, including, if
applicable, the Offering Price and 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(a), the Manager shall notify the Underwriters, before
signing the applicable Underwriting Agreement, of any provision in the
Underwriting Agreement that could result in an increase in the amount or
percentage of Firm Securities set forth opposite each Underwriter's name
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in the Underwriting Agreement by more than 25% (or such other percentage
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.
(b) OFFERING DATE. The Offering is to be made as soon after 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 Offering Circular,
as the case may be, and the applicable AAU. You agree not to sell any
Securities before the time the Manager releases the Securities for sale
to purchasers. The date the Securities are released for sale is referred
to herein as the "Offering Date."
(c) ADVERTISING; SUPPLEMENTAL OFFERING MATERIAL. Any public
advertisement of the Offering shall be made by the Manager on behalf of
the Underwriters on such date as the Manager shall determine. You agree
not to advertise the Offering before the date of the Manager's
advertisement thereof without the Manager's consent. Any advertisement
you make of the Offering after such date is your own responsibility at
your own expense and risk. If the Offering is made in whole or in part
in reliance on Rule 144A under the Securities Act, you agree not to
engage in any general solicitation in connection therewith relating to
any advertising or publicity and to abide by any other restrictions in
the AAU or the Underwriting Agreement. You also agree that you will not,
in connection with the offer and sale of the Securities in the Offering,
without the consent of the Manager, give to any prospective purchaser of
the Securities or other person not in your employ any written
information concerning the Offering, the Issuer, the Guarantor or the
Seller, other than information contained in any Preliminary Prospectus,
Prospectus, Preliminary Offering Circular or Offering Circular or other
offering Materials prepared by or with the consent of the Manager for
use by the Underwriters in connection with the Offering and, in the case
of a Registered Offering, filed with the Commission or NASD, as
applicable (the "Supplemental Offering Materials"). See also Sections
10(j) and 10(k) hereof.
(d) INSTITUTIONAL AND RETAIL SALES. You authorize the Manager to sell to
institutions or retail purchasers such Securities purchased by you
pursuant to the Underwriting Agreement as the Manager shall determine.
The Selling Concession on any such sales shall be credited to the
accounts of the Underwriters as the Manager shall determine.
(e) 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 shall determine. A "Dealer" is (i)
a broker or dealer (as defined in the Bylaws of the NASD) that is
actually engaged in the investment banking or securities business and is
either (A) a member in good standing of the NASD or (B) a foreign bank,
broker, dealer or other institution not eligible for membership in the
NASD that, in the case of either clause (i) (A) or (i) (B), makes the
representations and agreements applicable to such institutions contained
in Section 10(f), hereof, or (ii) a "Bank") (as defined in Section
3(a)(6) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") in the case of Offerings of Securities that are exempt
securities under Section 3(a)(12) of the Exchange Act, and such other
Securities as from time to time may be sold by a Bank that is not a
member of the NASD and that makes the representations and agreements
applicable to such institutions contained in Section 10(f) 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, shall be credited to
the accounts of the Underwriters as the Manager shall determine.
(f) DIRECT SALES. The Manager will advise you promptly, on the date of
the Offering, as to the Securities purchased by you pursuant to the
Underwriting Agreement that you shall retain for direct sale. At any
time before the termination of the applicable AAU, any Securities held
by the Manager for sale but not sold, may, at your request and at the
Manager's discretion, be released to you for direct sale, and Securities
so released to you shall 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 consent of the Manager.
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(g) RELEASE OF UNSOLD SECURITIES. From time to time before termination
of the applicable AAU, at the request of the Manager, you will advise
the Manager of the amount of Securities remaining unsold that were
retained by or released to you for direct sale and of the amount of
Securities and Other Securities (as defined below) purchased for your
account remaining unsold that were delivered to you pursuant to Section
5 hereof or pursuant to any Intersyndicate Agreement. At the request of
the Manager, you will release to the Manager any such Securities and
Other Securities remaining unsold (i) for sale by the Manager to
institutions, Dealers or retail purchasers, (ii) for sale by the Issuer
or Seller pursuant to delayed delivery contracts or (iii) if, in the
Manager's opinion, such Securities or Other Securities are needed to
make delivery against sales made pursuant to Section 5 hereof or any
Intersyndicate Agreement.
(h) 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").
4. DELAYED DELIVERY CONTRACTS.
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(a) ARRANGEMENTS FOR SALES. You agree that 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 amount of Securities to be purchased by the
several Underwriters shall be reduced by the respective amount of
Contract Securities attributed to such Underwriters as hereinafter
provided. Subject to the provisions of Section 4(b), the aggregate
amount of Contract Securities shall be attributed to the Underwriters as
nearly as practicable in their respective Underwriting Percentages,
except that, as determined by the Manager in its discretion, (i)
Contract Securities directed and allocated by a purchaser to specific
Underwriters shall be attributed to such Underwriters and (ii) Contract
Securities for which arrangements have been made for sale through
Dealers shall 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 shall 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(a), less, in the case of each Underwriter,
the concession to Dealers on Contract Securities sold through Dealers
and attributed to such Underwriter.
(b) EXCESS SALES. If the amount of Contract Securities attributable to
an Underwriter pursuant to Section 4(a) would exceed such Underwriter's
Original Purchase Obligation reduced by the amount of Underwriters'
Securities sold by or on behalf of such Underwriter, such excess shall
not be attributed to such Underwriter, and such Underwriter shall be
regarded as having acted only as a Dealer with respect to, and shall
receive only the concession to Dealers on, such excess.
5. PURCHASE AND SALE OF SECURITIES; FACILITATION OF DISTRIBUTION.
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(a) PURCHASE AND SALE OF SECURITIES; FACILITATION OF DISTRIBUTION. To
facilitate the distribution and sale of the Securities, you authorize
the Manager to buy and sell Securities and Other Securities, in addition
to Securities sold pursuant to Section 3 hereof, in the open market or
otherwise (including, without limitation, pursuant to any Intersyndicate
Agreement), for long or short account, on such terms as the Manager
deems advisable, and to over-allot in arranging sales. Such purchases
and sales and over-allotments shall be made for the accounts of the
several Underwriters as nearly as practicable in their respective
Underwriting Percentages or, in the case of any International Offering,
such purchases and sales shall be for such accounts as set forth in the
applicable Intersyndicate Agreement. Any securities purchased by the
Manager for stabilizing purposes in connection with the Offering before
execution of the applicable AAU shall be treated as having been
purchased pursuant to this Section 5(a) 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 shall not
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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. In calculating this net commitment, the initial
Offering Price shall be used with respect to the Securities so purchased
or sold and, in the case of all Other Securities, the purchase price
thereof shall be used. Your net commitment for short account (i.e.,
"naked short") shall be calculated by assuming that all Securities that
may be purchased upon exercise of any over-allotment option then
exercisable are acquired (whether or not actually acquired) and, in the
case of an International Offering, after giving effect to the purchase
of any Securities or Other Securities that the Manager has agreed to
purchase for your account pursuant to any applicable Intersyndicate
Agreement. 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(g) 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 agrees to
notify you if it engages in any stabilization transaction requiring
reports to be filed pursuant to Rule 17a-2 under the Exchange Act and to
notify you of the date stabilization is terminated. You agree not to
stabilize or engage in any syndicate covering transaction (as defined in
Rule 100 of Regulation M under the Exchange Act ("Regulation M")) in
connection with the Offering without the prior consent of the Manager.
You further agree to provide the Manager any reports required of you
pursuant to Rule 17a-2 not later than the date specified therein and you
authorize the Manager to file on your behalf with the Commission any
reports required by Rule 17a-2.
(b) PENALTY WITH RESPECT TO SECURITIES REPURCHASED BY THE MANAGER. If
pursuant to the provisions of Section 5(a) 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 shall specify in a
Wire, either:
(i) 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(d) 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
(ii) 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 an amount of Securities during any day that
exceeds the amount previously notified to you by Wire;
then you authorize the Manager either (x) 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 (ii), such Securities as exceed the amount specified
in such Wire or (y) to require you to repurchase such Securities or, in
the case of clause (ii), such Securities as exceed the 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.
(c) 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 the Wire, you have complied with the
provisions of Rule 103 applicable to the Offering, as interpreted by the
Commission and after giving effect to any applicable exemptions.
(d) 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 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
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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 Manger from time to
time. Any such sales shall 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 bid for,
purchase, 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 shall
be prohibited from (i) selling underlying common stock owned
beneficially by such Underwriter on the day the convertible securities
were first called for redemption, (ii) converting convertible securities
owned beneficially by such Underwriter on such date or selling
underlying common stock issued upon conversion of convertible securities
so owned, (iii) 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 (iv) purchasing or selling convertible securities or rights or
underlying common stock or depositary shares as a broker pursuant to
unsolicited orders.
6. PAYMENT AND SETTLEMENT.
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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 ▇▇▇▇▇▇
▇▇▇▇▇▇ & Company, Inc., for (i) 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 to the Firm Securities to be purchased by you,
(ii) 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 shall have been retained
by or released to you for direct sale as contemplated by Section 3(f)
hereof or (iii) the amount set forth or indicated in the applicable AAU,
as the Manager shall advise. You will make similar payment as the
Manager may direct for Additional Securities, if any, to be purchased by
you on the date specified by the Manager for such payment. The Manager
will make payment to the Issuer or Seller against delivery to the
Manager for your account of the Securities to be purchased by you, and
the Manager will deliver to you the Securities paid for by you which
shall 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 the facilities of DTC or other clearinghouse facility, payment
for and delivery of Securities purchased by you shall be made through
such facilities, if you are a member, or, if you are not a member,
settlement shall be made through your ordinary correspondent who is a
member.
7. EXPENSES.
--------
(a) 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, or other similar fee in the applicable AAU. Such
amount shall be divided among the Manager and any Co-Managers as they
may determine.
(b) GENERAL EXPENSES. You authorize the Manager to charge your account
with your Underwriting Percentage of 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 and
sale 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 the
NASD and the costs of currency transactions (including forward and
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hedging currency transactions) entered into to facilitate settlement of
the purchase of Securities permitted under Section 3(a) hereof.
8. MANAGEMENT OF SECURITIES AND FUNDS.
----------------------------------
(a) ADVANCES; LOANS; PLEDGES. You authorize the Manager to advance the
Manager's own funds for your account, charging current interest rates,
or to arrange loans for your account for the purpose of carrying out the
provisions of the applicable AAU and any Intersyndicate Agreement. In
connection therewith, you authorize the Manager to hold or pledge as
security therefore all or any securities 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 shall be several
in proportion to their respective Original Purchase Obligations and not
joint. Any lender is authorized to accept the Manager's instructions as
to the disposition of the proceeds of any such loans. In the event of
any such advance or loan, repayment thereof shall, in the discretion of
the Manager, be effected prior to making any remittance or delivery
pursuant to Section 8(b), 8(c) or 9(b) hereof.
(b) 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.
(c) 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(a) 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.
9. TERMINATION; INDEMNIFICATION.
----------------------------
(a) TERMINATION. Each AAU shall terminate at the close of business on
the later of the date on which the Underwriters pay the Issuer or Seller
for the Securities and 30 full days after the applicable Offering Date,
unless sooner terminated by the Manager. The Manager may at its
discretion by notice to you before termination of the AAU alter any of
the terms or conditions of the Offering to the extent permitted by
Section 3 or Section 4 hereof, or terminate or suspend the effectiveness
of Section 5 hereof, or any part thereof. No termination or suspension
pursuant to this paragraph shall affect the Manager's authority under
Section 3(a) hereof to take actions in respect of the Offering or under
Section 5 hereof to cover any short position incurred under the AAU or
in connection with covering any such short position to require you to
repurchase Securities as specified in Section 5(b) hereof.
(b) DELIVERY OR SALE OF SECURITIES; SETTLEMENT OF ACCOUNTS. Upon
termination of each AAU or prior thereto at the Manager's discretion,
the Manager shall deliver to you any Securities paid for by you pursuant
to Section 6 hereof and held by the Manager for sale pursuant to Section
3(d) or 3(e) 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 provision of Section 5 hereof or any Intersyndicate Agreement.
Notwithstanding the foregoing, upon termination of the 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 NASD rules or, if no period if specified, as
soon as practicable after termination of such AAU, your account shall be
settled and paid. The Manager may reserve from distribution such amount
as the Manager deems advisable to cover possible additional expenses.
The determination by the Manager of the amount so to be paid to or by
you shall be final and conclusive. Any of your funds in the Manager's
hands may be held with the Manager's general funds without
accountability for interest.
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Notwithstanding any provision of this ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
Master AAU other than Section 10(l), upon termination of each AAU or
prior thereto at the Manager's discretion, the Manager (i) may allocate
to the accounts of the Underwriters the expenses described in Section
7(b) 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(d)(ii) hereof), (ii) may deliver to the
Underwriters any unsold Securities or Other Securities purchased
pursuant to Section 5(a) hereof or any Intersyndicate Agreement and
(iii) may deliver to the Underwriters any unsold Securities purchased
pursuant to the applicable Underwriting Agreement, in each case in the
Manager's discretion. The Manager shall have full discretion to allocate
expenses and Securities to the accounts of any Underwriter as the
Manager decides, except that (i) no Underwriter (other than the Manager
or a Co-Manager) shall bear more than its share of such expenses, losses
or Securities (such share shall not exceed such Underwriter's
Underwriting Percentage and shall be determined pro rata among all such
Underwriters based on their Underwriting Percentages), (ii) no such
Underwriter shall receive Securities that, together with any Securities
purchased by such Underwriter pursuant to Section 6 (but excluding any
Securities that such Underwriter is required to repurchase pursuant to
Section 5(b)) exceed such Underwriter's Original Purchase Obligation and
(c) no Co-Manager shall bear more than its share, as among the Manager
and the other Co-Managers, 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 Section 6 hereof, you shall pay to the
Manager an amount per security equal to the amount set forth in Section
6(i), 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.
(c) POST SETTLEMENT EXPENSES. Notwithstanding any settlement on the
termination of the applicable AAU, you agree to pay any transfer taxes
which may be assessed and paid after such settlement on account of any
sales or transfers under the AAU or any Intersyndicate Agreement for
your account and your Underwriting Percentage of (i) all expenses
incurred by the Manager in investigating, preparing to defend or
defending against any action, claim or proceedings which is asserted or
instituted by any party (including any governmental or regulatory body)
relating to (A) the Offering Documents, (B) the violation of any
applicable restrictions on the offer, sale, resale or purchase of
Securities or Other Securities imposed by United States Federal or state
laws or foreign laws and the rules and regulations of any regulatory
body promulgated thereunder or the rules of any self-regulatory
organization or pursuant to the terms of the AAU, the Underwriting
Agreement or any Intersyndicate Agreement or (C) any claim that the
Underwriters constitute a partnership, an association or an
unincorporated business or other separate entity and (ii) any liability,
including attorneys fees, incurred by the Manager in respect of any such
action, claim or proceedings, whether such liability shall be the result
of a judgment or arbitrator's determination or as a result of any
settlement agreed to by the Manager, other than any such expense or
liability as to which the Manager actually receives indemnity pursuant
to Section 9(d), contribution pursuant to Section 9(e), indemnity or
contribution pursuant to the Underwriting Agreement or damages from an
Underwriter for breach of its representations, warranties, agreements,
or covenants contained in the applicable AAU. None of the foregoing
provisions of this Section 9(c) shall relieve any defaulting or
breaching Underwriter from liability for its default or breach.
(d) INDEMNIFICATION. 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 Securities Act or Section
20 of the Exchange Act, 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.
(e) CONTRIBUTION. Notwithstanding any settlement on the termination of
the applicable AAU, you agree to pay upon request of the Manager, as
contribution, your Underwriting Percentage of any losses, claims,
damages or liability, joint or several, paid or incurred by any
Underwriter to any person other than an Underwriter, arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Offering Documents or the omission or
alleged omission to state therein a material fact required to be stated
9
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 legal or other
expense reasonably incurred by the Underwriter (with the approval of the
Manager) on whose behalf the request for contribution is being made in
connection with investigating or defending any such loss, claim, damage
or liability or any action in respect thereof; provided that no request
shall be made on behalf of any Underwriter guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) from any Underwriter who was not guilty of such fraudulent
misrepresentation. None of the foregoing provisions of this Section 9(e)
shall relieve any defaulting or breaching Underwriter from liability for
its default or breach.
(f) SEPARATE COUNSEL. If any claim is asserted or action or proceeding
commenced pursuant to which the indemnity provided in Section 9(d) may
apply, the Manager may take such action in connection therewith as it
deems necessary or desirable, including retention of counsel for the
Underwriters, and in its discretion separate counsel for any particular
Underwriter or group of Underwriters, and the fees and disbursements of
any counsel so retained by the Manager shall be allocated among the
several Underwriters as determined by the Manager. Any Underwriter may
elect to retain at its own expense its own counsel and, on advice of
such counsel but only with the consent of the Manager, may settle or
consent to the settlement of any such claim, action or proceeding. The
Manager may settle or consent to the settlement of any such claim,
action or proceeding. Whenever the Manager receives a notice of the
assertion of any claim, action or proceeding to which the provisions of
Section 9(d) would apply, it will promptly notify each Underwriter.
Whenever you receive notice of the assertion of any claim or
commencement of any action or proceedings to which the provisions of
Section 9(d) would apply, you 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
claim, action or proceeding, and the action taken by it in connection
therewith.
(g) SURVIVAL OF AGREEMENTS. Your agreements contained in Sections 3(a),
5, 9(c), 9(d), 9(e), 9(f) and 11 (b) hereof shall remain operative and
in full force and effect regardless of (i) any termination of an AAU or
Intersyndicate Agreement, (ii) any termination of the Underwriting
Agreement, (iii) 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 (iv)
acceptance of any payment for any Securities.
10. REPRESENTATIONS AND COVENANTS OF UNDERWRITERS.
---------------------------------------------
(a) KNOWLEDGE OF OFFERING. You understand that it is your responsibility
to examine the Offering Documents and to familiarize yourself with the
terms of the Securities, any applicable Indenture and the other terms of
the Offering 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 Registration Statement and the Prospectus or the Offering Circular,
as the case may be.
(b) DISTRIBUTION OF MATERIALS. You will keep an accurate record of the
names and addresses of all persons to whom you give copies of the
Registration Statement, the Prospectus, any Offering Circular or any
Preliminary Prospectus or Preliminary Offering Circular (or any
amendment or supplement thereto). When furnished with any subsequent
amendment to the Registration Statement, any subsequent Prospectus, any
subsequent Offering Circular or any memorandum outlining changes in the
Registration Statement or any Prospectus or Offering Circular, you will,
upon request of the Manager, promptly forward copies thereof to such
persons.
(c) ACCURACY OF UNDERWRITERS' INFORMATION. You confirm that the
information that you have given or 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 and the Prospectus or the 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
10
immediately of any development before the termination of the applicable
AAU which makes untrue or incomplete any information you have given or
are deemed to have given in response to the Underwriters' Questionnaire
(or such other questions).
(d) NAME, ADDRESS. Unless you have promptly notified the Manager in
writing otherwise, your name as it should appear in the Prospectus or
the Offering Circular and any advertisement, if different, and your
address are as set forth on the signature pages hereof.
(e) CAPITAL REQUIREMENTS. You represent that your commitment to purchase
the Securities (i) will not result in a violation of the financial
responsibility requirements of Rule 15c3-1 under the Exchange Act or of
any similar provision of any applicable rules of the NASD or any
securities exchange to which you are subject of (ii) if you are a
financial institution subject to regulation by the Board of Governors of
the Federal Reserve System, the Comptroller of the Currency or the
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.
(f) COMPLIANCE WITH NASD REQUIREMENTS. You represent that you are a
member in good standing of the NASD, a Bank that is not a member of the
NASD, or a foreign bank or dealer not eligible for membership in the
NASD. In making sales of Securities, if you are an NASD member, you
agree to comply with all applicable interpretive material and rules of
the NASD, including, without limitation, IM-2110-1 (the NASD's
interpretation with respect to free-riding and withholding) and Rule
2740. If you are a foreign bank or dealer, you agree to comply, as
applicable, with IM-2110-1 and NASD Rules 2730, 2740 and 2750 as though
you were an NASD member and with NASD Rule 2420 as it applies to a
nonmember broker or dealer in a foreign country. If you are a Bank, you
agree, to the extent required by applicable law or NASD rules, that you
will not, in connection with the public offering of any Securities that
do not constitute "exempted securities" within the meaning of Section
3(a)(12) of the Exchange Act or such other Securities as from time to
time may be sold by a Bank, 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, and you agree
to comply, as applicable, with NASD Rule 2420 as though you were a
member.
(g) FURTHER STATE NOTICE. The Manager will file a Further State Notice
with the Department of State of New York, if required.
(h) COMPLIANCE WITH RULE 15C2-8. You agree to comply with Rule 15c2-8 under
the Exchange Act in connection with any Registered Offering and any
other Offering to which the provisions of Rule 15c2-8 are made
applicable pursuant to the AAU or otherwise. In the case of an Offering
other than a Registered Offering, you agree to comply with applicable
Federal and state law, the applicable rules and regulations of any
regulatory body promulgated thereunder or the rules of any
self-regulatory organization governing the use and distribution of
offering circulars by underwriters.
(i) 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 Exchange Act, you agree that 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.
(j) OFFERING RESTRICTIONS. If you are a foreign bank or dealer and you
are not registered as a broker-dealer under Section 15 of the Exchange
Act, you agree that while you are acting as an Underwriter in respect of
the Securities and in any event during the term of the applicable AAU,
you will not directly or indirectly effect in, or with persons who are
nationals or residents of, the United States, its territories or
possessions, any transactions (except for the purchases provided for in
the Underwriting Agreement and transactions contemplated by Sections 3
and 5 hereof) in Securities or any Other Securities. It is understood
that, except as specified in the 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.
11
(k) REPRESENTATIONS, WARRANTIES AND AGREEMENTS. You agree to 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.
(l) 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 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
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 Purchase Obligation to the Original Purchase Obligations of all
Underwriters other than the advising Underwriter or Underwriters or in
such other manner as the Manager shall determine.
11. DEFAULTING UNDERWRITERS.
(a) 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 shall immediately terminate
except (i) as set forth in Section 9(g), (ii) you shall remain liable
for your Underwriting Percentage (or such other percentage as may be
specified pursuant to Section 9(b)) of all expenses and for any
purchases or sales made for your account pursuant to the provisions of
Section 5 hereof or any Intersyndicate Agreement and (iii) the
termination shall not affect any obligations of any defaulting or
breaching Underwriter.
(b) SHARING OF LIABILITY. If any Underwriter shall default in its
obligations (i) pursuant to Section 5(a), 5(b) or 5(d), (ii) to pay
amounts charged to its account pursuant to Section 7(a); 7(b) or 8(a) or
(iii) pursuant to Section 9(b), 9(c), 9(d), 9(e), 9(f) or 11(a), 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 shall relieve any defaulting
Underwriter from liability to the non-defaulting Underwriters, the
Issuer, the Guarantor or the Seller for its default.
(c) 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, shall be taken as the basis for all rights and
obligations hereunder, but this shall not relieve any defaulting
Underwriting from liability for its default.
12. MISCELLANEOUS.
(a) OBLIGATIONS SEVERAL. Nothing contained in this ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
Company, Inc. Master AAU or any AAU shall constitute you as a partner
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 United States Internal Revenue Code of
1986, as amended. Each Underwriter authorizes the Manager, on behalf of
the Underwriter, to execute such evidence of such election as may be
required by the United States Internal Revenue Service.
12
(b) LIABILITY OF MANAGER. The Manager shall be under no liability to you for
any act or omission except for obligations expressly assumed by the
Manager in the applicable AAU.
(c) TERMINATION OF MASTER AGREEMENT AMONG UNDERWRITERS. This ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
Company, Inc. Master AAU may be terminated by either party hereto upon
five (5) business days' written notice to the other party; provided that
with respect to any Offering for which an AAU was sent prior to such
notice, this ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. Master AAU as it applies to
such Offering shall remain in full force and effect and shall terminate
with respect to such Offering in accordance with Section 9(a) hereof.
(d) GOVERNING LAW. This ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. Master AAU and each
AAU shall be governed by and construed in accordance with the laws of
the State of Tennessee without regard to principles of conflicts of
laws.
(e) AMENDMENTS. This ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. Master AAU may be
amended from time to time by consent of the parties hereto. Your consent
shall be deemed to have been given to an amendment to this ▇▇▇▇▇▇ ▇▇▇▇▇▇
& Company, Inc. Master AAU, and such amendment shall be effective, five
(5) business days following written notice to you of such amendment if
you do not notify ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇
& Company, Inc. Master AAU as so amended shall apply each AAU thereafter
entered into except as otherwise specifically provided in any such AAU.
(f) NOTICES. Any notice to any Underwriter shall be deemed to have been duly
given if mailed, sent by wire, telex, facsimile or electronic
transmission or other written communication or delivered in person to
the Underwriter at the address set forth in its Underwriters'
Questionnaire. Any such notice shall take effect upon receipt thereof.
PLEASE CONFIRM YOUR ACCEPTANCE OF THIS MASTER AGREEMENT BY SIGNING AND RETURNING
TO US THE ENCLOSED DUPLICATE COPY.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
By:_________________________________________
Name:_______________________________________
Title: Managing Director
--------------------------------------------
CONFIRMED: 20__
____________________________________________
NAME OF UNDERWRITER
By:_________________________________________
Name:_______________________________________
Title:______________________________________
(IF PERSON SIGNING IS NOT AN OFFICER OR A PARTNER, PLEASE ATTACHE INSTRUMENT OF
AUTHORIZATION.)
Address:____________________________________
____________________________________
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