UP TO 420,000 LIMITED PARTNERSHIP INTERESTS of ICON EQUIPMENT AND CORPORATE INFRASTRUCTURE FUND FOURTEEN, L.P. (a Delaware limited partnership) DEALER- MANAGER AGREEMENT
EXHIBIT 1.1
UP TO 420,000 LIMITED
PARTNERSHIP INTERESTS
of
ICON EQUIPMENT AND CORPORATE
INFRASTRUCTURE FUND FOURTEEN, L.P.
(a
Delaware limited partnership)
DEALER-MANAGER
AGREEMENT
|
ICON
Securities Corp.
|
Date:
[_______], 2009
|
000 Xxxxx
Xxxxxx, 0xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Reference
is made to the enclosed prospectus, which was included in the registration
statement at the time it became effective and any and all amendments and
supplements thereto (collectively, the “Prospectus”), relating to the offering
by ICON Equipment and Corporate Infrastructure Fund Fourteen, L.P., a Delaware
limited partnership which is an equipment leasing and financing fund (the
“Partnership”), of limited partnership interests (the “Interests”). The
Interests and the terms upon which they are offered are more fully described in
the Prospectus.
We are
entering into this Agreement with you, effective as the date hereof, as
exclusive managing sales agent (the “Dealer-Manager”) pursuant to which you are
authorized to (1) select and provide sales support to a group of broker-dealers
(the “Selling Dealers”) which are members of the Financial Industry Regulatory
Authority, Inc. (“FINRA”) and (2) to offer directly to the general public, in
each case to offer, on a “best efforts” basis, a total maximum offering of (i)
up to 400,000 Interests at a public offering price of $1,000.00 per Interest
(the “Primary Offering”) and (ii) up to 20,000 Interests at a public
offering price of $900.00 per Interest, issued pursuant to the Partnership’s
distribution reinvestment plan (the “DRIP Offering,” together with the Primary
Offering, the “Offering”). We may, at any time prior to the two-year anniversary
of the date the Offering commences, increase the Primary Offering to a maximum
of up to 600,000 Interests; provided, however, that the Offering Period (as
defined below) may not be extended in connection with such change.
Each
Selling Dealer selected by you is authorized by its selling dealer agreement
(the “Selling Dealer Agreement”), and you are hereby authorized, to find
purchasers for the Interests which satisfy the suitability standards set forth
in the Prospectus during the Offering Period (as defined below) and which are
acceptable to the Partnership. The date on which the Offering shall terminate is
the earlier of (i)
the second anniversary of the Effective Date (as defined in the Prospectus) of
the registration statement, as amended at the time it becomes effective (the
“Registration Statement”) (with the offering of Interests in certain States for
more than 12 months subject to the approval of the State securities commission
or agency of such States) or (ii) the date on which all Interests available for
sale are sold, unless the Offering is earlier terminated (hereinafter called the
“Termination Date”), with notice to you by ICON GP 14, LLC, the General Partner
of the Partnership (the “General Partner”). The period between the Effective
Date of the Registration Statement and the Termination Date is hereinafter
called the “Offering Period.” Each date on which any investor is admitted to the
Partnership (thereby becoming a “Limited Partner”) is hereinafter called a
“Closing Date.”
The
Partnership will accept subscriptions for the Interests subject to the
Partnership’s right to terminate the Offering at any time with notice to you and
to reject any subscription in whole or in part, in its sole discretion. The
acceptance of subscriptions is further subject to the following terms and
conditions:
1.
Appointment as
Dealer-Manager. We
hereby authorize you to act as the Dealer-Manager during the Offering Period
and, on a “best efforts” (and not “firm commitment”) basis only, to offer
Interests directly, and to enter into Selling Dealer Agreements on behalf of the
Partnership authorizing each such Selling Dealer to offer, to potential
investors which (a) satisfy the investor suitability standards (i) as set forth
in the Prospectus, (ii) as provided under applicable State laws and (iii) as
provided in the rules of FINRA and (b) are acceptable to the Partnership (the
“Eligible Investors”). As Dealer-Manager, you agree to act as an independent
contractor and not as our agent or as agent for the Partnership in connection
with your solicitation of subscriptions for Interests and will be responsible
for assuring that each investor satisfies all such suitability requirements. You
hereby agree that you will not make representations or give information which is
not (x) contained in the Prospectus or in supplemental sales literature
specifically authorized for use in the manner described in Section 5 of this
Agreement or (y) consistent with the representations and information
contained therein.
2.
Subscriptions for
Interests. You
shall (a) find Eligible Investors for the Interests, (b) keep records of
the basis for each determination by a member of, or person associated with, your
firm of an investor’s suitability and (c) promptly forward each fully completed
and executed copy of the subscription agreement, which shall be in form of
Exhibit C to the Prospectus (the “Subscription Agreement”), as signed by each
investor and countersigned by a supervisory representative of your firm,
together with the related subscription payment in the form of a check made
payable to “DBTCA as Escrow Agent for ICON Fund 14” pending receipt and
acceptance by the General Partner of subscriptions for 1,200 Interests and
thereafter (except for residents of the Commonwealth of Pennsylvania who must
continue to make checks payable to the Escrow Account until subscriptions for
20,000 Interests have been received and accepted in the Primary Offering) in the
form of a check made payable to “ICON Fund 14” to:
ICON
Capital Corp.
000 Xxxxx
Xxxxxx, 0xx Xxxxx
Xxx Xxxx,
XX 00000
Each
Subscription Agreement and related subscription payment shall be forwarded by
your firm to the General Partner at the foregoing address no later than noon of
the next day after receipt from your customer by any member of, or associated
with, your firm of such payment, unless such Subscription
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Agreement
and payment are first forwarded to another of your offices for internal
supervisory review (which shall take place within the aforementioned time
period), in which event such other office shall complete its review and forward
such Subscription Agreement and payment to the above address no later than noon
of the next business day after its receipt thereof. Notwithstanding the
foregoing, any investor’s check not properly completed as described above shall
be promptly returned to such investor not later than the next business day
following your receipt of such check. Each subscription so received by the
General Partner will be subject to acceptance or rejection by it by the end of
the business day on which it is received. Each such subscription payment
received by us and accepted by the General Partner will be transmitted, as soon
as practicable, but in any event by the end of the second business day following
our receipt thereof, to Deutsche Bank Trust Company Americas (the “Escrow
Agent”) for deposit in an interest-bearing bank account insured by the Federal
Deposit Insurance Corporation, which shall be an escrow account in the name of
Escrow Agent pending the Initial Closing Date (as defined below) and will be a
segregated subscription account of the Partnership thereafter. We undertake to
promptly return directly to you for return to any of your customers whose
subscriptions are not accepted by the General Partner, their Subscription
Agreements together with the related, uncashed subscription payments within two
business days of our receipt of same. Unless and until an event requiring a
refund occurs, an investor will have no right to withdraw his subscription
payments from escrow. The General Partner has reserved the unconditional right
to refuse to accept, in whole or in part, any subscription and related payment
and to refuse to accept as a purchaser any investor for any reason whatsoever or
no reason.
Unless
subscriptions for at least 1,200 Interests are received and accepted by the
General Partner in the Primary Offering on or before the Termination Date, the
Partnership will promptly refund all subscription payments received by it in
full with interest earned thereon, if any, and without deduction for any
expenses, and the Offering shall thereupon terminate. Promptly after receiving
and accepting subscriptions for 1,200 Interests in the Primary Offering the
General Partner will notify the Escrow Agent that Schedule A to the
Partnership’s limited partnership agreement (the “Partnership Agreement”) has
been amended to admit as Limited Partners investors (other than those who are
residents of the Commonwealth of Pennsylvania, which requires that a minimum of
20,000 Interests must be sold in the Primary Offering before such resident’s
subscription payment may be released from escrow) for whom subscriptions have
been accepted, and the Escrow Agent is to pay over promptly to the Partnership
the amount of all such investors’ subscription payments then on deposit and
interest earned on each subscription payment. The date upon which such admission
of Limited Partners shall occur is hereinafter called the “Initial Closing
Date.” Under regulations of the Commonwealth of Pennsylvania, until
subscriptions for 5% (or $20,000,000) of the maximum offering have been received
in the Primary Offering, subscription payments of Pennsylvania residents must be
held in escrow. After subscriptions equaling $20,000,000 for the residents of
all jurisdictions including Pennsylvania have been received in the Primary
Offering, all remaining subscriptions being held in escrow will be released from
escrow upon the next Closing Date and the applicable investors will be admitted
to the Partnership as Limited Partners (in the manner described in the preceding
sentence). Following the Initial Closing Date, the General Partner will continue
to accept subscriptions for additional Interests during the remainder of the
Offering Period and to admit to the Partnership as Limited Partners investors
whose subscriptions are accepted. Such admissions will take place from time to
time as shall be determined by the General Partner, with the anticipation that
Closing Dates subsequent to the Initial Closing Date will occur as frequently as
daily but not less frequently than twice each month following the Initial
Closing Date and promptly following the end of the Offering Period or earlier
termination of the Offering.
3
In
connection with the Offering, the Partnership will pay:
(a) sales
commissions in an amount equal to 7.0% of the total purchase price of all
Interests sold in the Primary Offering through your efforts (the “Sales
Commissions”), except for Interest sales to (a) officers, employees and
securities representatives of the Dealer-Manager, the General Partner, their
affiliates and each Selling Dealer (the “Affiliated Members”), (b) investors by
registered investment advisers affiliated with a Selling Dealer who do not
charge a commission in connection with an investment in Interests (the “RIA
Members”), as to which no Sales Commissions are payable, and (c) participants in
the distribution reinvestment plan for Interests sold through reinvestment of
those investors’ distributions, in which case no Sales Commissions will be paid
by the Partnership on such Interests sold through reinvestment. Affiliated
Members and RIA Members may purchase Interests for a net price of $930.00 per
Interest. Purchases of Interests by Affiliated Members and RIA Members shall be
for investment purposes only and not with a view toward resale or other
distribution and shall be limited to a maximum of 10% the total Interests sold.
(b) an
underwriting fee (the “Underwriting Fee”) equal to $30.00 for every Interest
actually sold by you in the Primary Offering, your registered representatives
and registered representatives of all Selling Dealers for your services in
supervising the sale of Interests, for costs and expenses incurred in connection
with holding or attending bona fide training and education seminars and
conferences in compliance with FINRA’s Conduct Rules and to reimburse you, on a
non-accountable basis, for wholesaling fees and marketing expenses.
The total
compensation to be paid to you in connection with the Primary Offering,
including Sales Commissions and Underwriting Fees shall not exceed 10.0% of the
gross offering proceeds from the sale of Interests. Bona fide due diligence fees
and expenses reimbursements (if any), shall be paid upon receipt of a detailed
and itemized invoice in accordance with FINRA’s Conduct Rules.
All such
compensation will be paid by the Partnership within 30 days after each Closing
Date in respect of subscriptions submitted by investors who were admitted to the
Partnership on such Closing Date. Notwithstanding the foregoing, no compensation
will be paid with respect to subscriptions (or portions thereof) which have been
rejected by the General Partner, or in the event the minimum offering for 1,200
Interests is not successfully completed.
Sales
Commissions with respect to Interests actually sold by you or your registered
representatives and Underwriting Fees with respect to all Interests sold (by you
or by any Selling Dealers) will be due and payable to you within 30 days of each
Closing Date on which purchasers of such Interests are admitted as Limited
Partners.
3.
Termination of
Agreement. The
provisions of this Agreement relating to the Offering shall terminate as to the
Partnership upon the completion of the Offering Period or earlier termination of
the Offering, and may be terminated by you or us as specified in Section 10 of
this Agreement, subject to the survival of all provisions hereof which by their
nature are intended to survive termination of this Agreement.
4
4.
Limitations on
Payments. You
agree that neither you nor any salesperson or registered representative under
your control shall, directly or indirectly, pay or award any finder’s fees,
commissions or other compensation to any person engaged by a potential investor
for investment advice as an inducement to such advisor to advise the purchase of
Interests; provided, however, that this provision shall not prohibit the normal
Sales Commissions payable to any properly licensed person for selling Interests.
In addition, you agree not to receive any rebates or give-up or participate in
any reciprocal business arrangements (other than the securities distribution
arrangements specified in the Prospectus) which would violate any restriction on
the Partnership contained in the Prospectus.
5.
Supplemental Sales
Material.
Supplemental
sales materials shall be categorized as either:
(a) Broker/Dealer Use
Only
educational materials, which shall be defined as materials prepared for or by
the Partnership for the sole purpose of educating you in your preparation to
solicit the sale of Interests in the Offering and shall not be used by you with
members of the general investing public and, to the extent required, have been
submitted to and reviewed by the appropriate regulatory agencies.
(b) Investor sales
materials, which shall be defined as materials prepared for or by the
Partnership which, to the extent required, have been submitted to and reviewed
by FINRA, SEC or other appropriate regulatory agencies. These materials may be
used by you with members of the general investing public.
You agree
that you will not use any supplemental sales materials other than the Prospectus
(including, inter alia
transmittal letters, underwriting memoranda, summary descriptions, graphics,
supplemental exhibits, media advertising, charts, pictures, written scripts or
outlines), whether prepared to solicit sales to prospective investors or for the
exclusive use of you and your personnel, except as supplied by the Partnership
and described under the caption “Supplemental Sales Literature” in the
Prospectus, or otherwise specifically described in a written advice from the
Partnership authorizing the type and manner of use. The use of any such other
supplemental sales material is expressly prohibited to the extent specified in
any such written advice.
6.
Right to
Sell.
Notwithstanding any information furnished or any action taken by us in that
connection, we shall have no obligation or liability with respect to the
registration or qualification of the Interests in any jurisdiction or
qualification or right of you or any Selling Dealer to sell or advertise them
therein.
5
7.
Limited
Obligations. Nothing
herein contained shall constitute a partnership, association or other separate
entity or partners between or among you, and/or any Selling Dealer and the
Partnership, or with each other, but you shall be responsible for your share of
any liability or expense based upon any claim to the contrary. We shall not be
under any liability to you, except for obligations expressly assumed in this
Agreement and any liabilities under the Securities Act of 1933, as amended (the
“Act”), and no other obligations on our part shall be implied hereby or inferred
herefrom.
(a)
Notwithstanding anything to the contrary provided herein, the Partnership will
indemnify and hold you harmless in the manner and solely to the extent specified
in Section 6 of the Partnership Agreement (the terms of which are incorporated
herein by reference) against any losses (including any claims of any Selling
Dealers), damages or liabilities, joint or several, to which you may become
subject as a result of entering into, or performing your duties, under this
Agreement.
(b) You
agree to indemnify and hold harmless the General Partner, in its capacity as
general partner of the Partnership, its affiliates and the Partnership against
any losses, claims, damages or liabilities to which the General Partner and the
Partnership may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in light of circumstances
under which they are made not misleading in each case to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the Registration Statement or the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the General Partner by you expressly for use therein: and further
provided that the Partnership or the General Partner will not be liable in any
case if it is determined that you were at fault in connection with any loss,
claim, damage or liability.
The
indemnity agreement in this paragraph (b) shall be in addition to any liability
which you may otherwise have and shall extend, upon the same terms and
conditions, to each member of the Partnership and to each person, if any, who
controls the Partnership within the meaning of the Act.
(c)
Promptly after receipt an indemnified party under paragraph (a) or (b) above of
notice of the commencement any action, such indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under such
paragraph, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than under
such paragraph. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in, and to the extent
that it shall wish, to jointly participate with any other indemnifying party,
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party, and notice to the indemnifying party of its
6
election
so to assume the defense thereof. The indemnifying party shall pay all legal
fees and expenses of the indemnified party in the defense of such claims or
actions; provided, however, that the indemnifying party shall not be obliged to
pay legal expenses and fees to more than one law firm in connection with the
defense of similar claims arising out of the same alleged acts or omissions
giving rise to such claims notwithstanding that such actions or claims are
alleged or brought by one or more parties against one or more than one
indemnified party. In the case such claims or actions are alleged or brought
against more than one indemnified party, then the indemnifying party shall be
obliged only to reimburse the expenses and fees of the one law firm which has
been selected by a majority of the indemnified parties against which such action
is brought finally and in the event the majority of such indemnified parties are
unable to agree on which law firm for which expenses or fees will be reimbursed
by the indemnifying party, then payments shall be made to the first law firm of
record representing an indemnified party against the action or claim. Such law
firm shall be paid only to the extent of the services performed by such law firm
and no reimbursement shall be payable to such law firm on account of legal
services performed by another law firm. Notwithstanding anything contained
herein to the contrary, an indemnified party may not settle or compromise any
action brought against such indemnified party without the prior written consent
of the indemnifying party.
8.
Representation, Warranties
and Covenants of Dealer-Manager.
(a)
Qualification of
Dealer-Manager and its Representatives. You
hereby represent, warrant and covenant that you are, and during the Offering
Period will continue to be, (i) a member in good standing of FINRA and (ii)
registered as a broker-dealer in those jurisdictions wherein members of, or
persons associated with, your firm will offer or sell the Interests. You also
hereby represent, warrant and covenant that, during the Offering Period, you
will only permit members of, or persons associated with, your firm to offer or
sell Interests if such persons are duly registered or licensed to sell direct
participation program investments by, and in good standing with, FINRA and those
jurisdictions wherein they will offer or sell Interests. You hereby certify that
neither your firm nor any member of your firm has been subject to a fine,
consent decree or suspension of your or their licenses within the last three (3)
years for violation of federal or State securities laws or regulations. You also
hereby certify that you will promptly advise the President of the General
Partner of any civil or administrative proceedings during the Offering Period
involving alleged violations of such federal or State securities laws or
regulations.
(b)
Investor Suitability and
Minimum Investment. You
further hereby represent, warrant and covenant that no member of, or person
associated with your firm, shall offer or sell Interests in any jurisdiction
except to investors who satisfy the suitability and minimum investment
requirements under the applicable provisions of the Prospectus or the laws of
such jurisdiction (if they are more restrictive). You hereby acknowledge your
firm’s obligations pursuant to FINRA rules, in general, and FINRA Conduct Rule
2810, in particular. Specifically, you agree to ensure that, in recommending the
purchase, sale or exchange of Interests to an investor, each member of, or
person associated with, your firm shall have reasonable grounds (as required by
FINRA Conduct Rule 2810) to believe, on the basis of information obtained from
the investor concerning his investment objectives, other investments, financial
situation and needs, and any other information known to such member of, or
person associated with your firm, that (i)
7
the
investor is or will be in a financial position appropriate to enable him to
realize to a significant extent the benefits described in the Prospectus,
including the tax benefits to the extent they are a significant aspect of the
Partnership; (ii) the investor has a fair market net worth sufficient to sustain
the risks inherent in an investment in Interests in the amount proposed,
including loss, and lack of liquidity of, of such and (iii) an investment in
Interests is otherwise suitable for such investor. You further represent,
warrant and covenant that you will: (x) require each member of, or person
associated with your firm, to make diligent inquiry as to the suitability and
appropriateness of an investment in Interests from each proposed investor, (y)
retain in your records for a period equal to the longer of (A) six years from
the date of the applicable sale of Interests or (B) five years from the end of
the Offering Period, and (z) make available to us and the Partnership, upon
request (and upon your firm’s receipt of an appropriate document subpoena from
one of the following, to representatives of the Securities and Exchange
Commission (“SEC”), FINRA and applicable State securities administrators)
documents disclosing the basis upon which the determination as to suitability
was reached as to each purchaser of Interests pursuant to a subscription
solicited by your firm, whether such records relate to accounts which have been
closed, accounts which are currently maintained, or accounts hereafter
established. You shall not purchase any Interests for a discretionary account
without obtaining the prior written approval of your customer and his signature
on a Subscription Agreement.
(c)
Compliance with FINRA’s
Rules. You also
hereby agree that you will require each member of, or person associated with,
your firm to inform any prospective purchaser of Interests, prior to his
subscription for Interests, of all pertinent facts relating to the liquidity and
marketability of an investment in Interests during the term of the investment
(as provided in FINRA Conduct Rule 2810). You also hereby agree to fully comply
with all pertinent sections of Article III of FINRA’s Rules of Fair Practice,
including, without limitation Sections 8, 24, and 36 thereof.
(d)
Record-Keeping and
Disclosure. You
further agree to keep such records with respect to each investor, his
suitability and the amount of Interests sold and retain such records for such
period of time as may be required by the SEC, any State securities commission,
FINRA or by the Partnership. You agree to obtain and to forward to the
Partnership any representation letters or related documents, if any, as are set
forth in the Subscription Agreement which is Exhibit C to the Prospectus.
(e)
Delivery of the Prospectus
in Connection with the Sale of Interests. You
hereby represent, covenant and agree that no representative of your firm shall
sell, and your firm shall not endorse and forward any Subscription Agreement to
signify the completion of a subscription for, any Interests unless, in
connection therewith, the proposed purchaser of such Interests has received a
current copy of the Prospectus at or prior to the time that such person has
signed his Subscription Agreement. Your firm acknowledges and agrees that such
proposed purchaser shall not be admitted to the Partnership and Interests issued
until the later of (a) the next succeeding Closing Date or (b) five business
days after the date such proposed purchaser received a copy of the Prospectus
(which shall be determined by the General Partner by the date on which such
proposed purchaser signed the Subscription Agreement).
8
(f)
Compliance with Rule 15c2-8
of the Securities Exchange Act of 1934, as amended. You
hereby (a) represent that neither you nor any person associated with your firm
solicited customers’ orders for Interests prior to the Effective Date; (b)
represent and agree to take all reasonable steps to make a copy of the final
Prospectus relating to the Interests to each person associated with your firm
who is expected, after the Effective Date, to solicit customer orders for
Interests prior to the making of any such solicitation by such associated
persons; (c) agree to take reasonable steps, as Dealer-Manager of this Offering,
to furnish each Selling Dealer with sufficient copies, as requested by them, of
the final Prospectus to enable them to comply with paragraphs (b), (c), (d) and
(e) of Rule 15c2-8 of the Securities Exchange Act of 1934, as amended, and the
prospectus delivery requirements of Section 5(b)(1) and (2) of the Act; and (d)
agree that neither you, nor any person associated your firm, will furnish
Prospectuses to any person in any State (e.g. in any State (i) listed as not
cleared on the “Blue-Sky Survey” by counsel to the Partnership or the
Dealer-Manager or (ii) in which your firm or any person associated with your
firm who solicits offers to buy or offers to sell Interests is not currently
registered); provided, however, that this provision is not to be construed to
relieve you from complying with the requirements of Section 5(b)(1) and 2 of the
Act. You hereby acknowledge that Prospectuses shall not be furnished by you or
any person associated with your firm to any prospective investor while the
Registration Statement is subject to an examination, proceeding or stop order
pursuant to Section 8 of the Act.
(g) Compliance with Title III of
PATRIOT Act. With
respect to your customers or any customers solicited by persons associated with
your firm that purchase Interests, you hereby represent and agree to comply with
relevant provisions applicable to securities broker-dealers of Title III of the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272
(2001) (the “PATRIOT Act”), as well as FINRA Rule 3011 setting forth minimum
standards for Anti-Money Laundering (“AML”) Programs of broker-dealers. These
minimum standards require you to have implemented a written AML Program
reasonably designed to (I) detect traces of suspicious financial transactions,
(II) achieve compliance with the Bank Secrecy Act regulations,
(III) provide for independent testing, (IV) designate an AML Compliance
Officer, and (V) provide for ongoing training. Title III of the PATRIOT
Act, 31 U.S.C. §§ 53II, et seq., is referred to as the International Money
Laundering Abatement and Anti-Terrorist Financing Act of 2001 (the “Money
Laundering Abatement Act”). Among other applicable requirements under the Money
Laundering Abatement Act, you agree to comply with Section 312 regarding due
diligence requirements, Section 313 regarding correspondent account
prohibitions, Section 314 regarding financial institution cooperation, Section
319(b) regarding domestic and foreign bank records production, Section 326
regarding customer identification standards (as described in greater detail in
Section 8(i) of this Agreement), Section 352 regarding anti-money laundering
compliance program components, and Section 356 regarding suspicious activity
reporting requirements.
9
(h) Compliance with Privacy
Laws. You
hereby represent, warrant and covenant that you and any person associated with
your firm (I) to will abide by and comply with (A) the privacy standards and
requirements of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 (“GLB Act”), (B) the
privacy standards and requirements of any other applicable federal or State law,
and (C) your own internal privacy policies and procedures, each as may be
amended from time to time; (II) will to refrain from the use or disclosure
of nonpublic personal information (as defined under the GLB Act) of all
customers who have opted out of such disclosures except as necessary to service
the customers or as otherwise necessary or required by applicable law; and
(III) will to be responsible for determining which customers have opted out
of the disclosure of nonpublic personal information by periodically reviewing
and, if necessary, retrieving a list of such customers (the “List”) to identify
customers that have exercised their opt-out rights. In the event you use or
disclose nonpublic personal information of any customer for purposes other than
servicing the customer, or as otherwise required by applicable law, you will
consult the List to determine whether the affected customer has exercised his or
her opt-out rights. You understand that you are prohibited from using or
disclosing any nonpublic personal information of any customer that is identified
on the List as having opted out of such disclosures.
(i) Customer Identification
Procedures (“CIP”). You
hereby represent, warrant and certify, pursuant to Section 326 of the USA
PATRIOT Act, that you have implemented reasonable CIP to (I) to verify and
identify customers who open new accounts, (II) to maintain records of the
information retrieved from the customer including, the name, address, and other
identifying information, and (III) to consult lists of known or suspected
terrorists or terrorist organizations to determine if the potential investor
appears on any such list and will provide us with annual re-certification to the
extent reasonably requested by us of such implementation.
9.
Representations, Warranties,
and Covenants of the Partnership.
(a) The
Registration Statement, including the Prospectus, with respect to the Interests
has been (i) prepared by the Partnership in conformity with the requirements of
the Act and the rules and regulations of the SEC promulgated thereunder, (ii)
declared effective under the Act and (iii) filed with the SEC under the Act.
Copies of the Registration Statement and each amendment heretofore filed or
proposed to be filed (and of each related preliminary prospectus) have been
delivered to you.
(b) The
SEC has not issued any order preventing or suspending the use of any preliminary
prospectus or the Prospectus nor are any proceedings for that purpose pending,
threatened or, to the knowledge of the Partnership, contemplated by the SEC. The
Registration Statement and the Prospectus and any further amendments or
supplements thereto including any post-effective amendments will, when they
become effective, conform in all material respects to the requirements of the
Act and the rules and regulations of the SEC promulgated thereunder and will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
in light of the circumstances under which they were made not misleading;
provided, however, that the Partnership makes no representation or warranty as
to statements or omissions made in reliance upon and in conformity with written
information furnished to the Partnership by you expressly for use therein.
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(c) The
General Partner has been duly organized in State of Delaware and is
validly existing and in good standing under the laws of the State
of Delaware with power and authority (corporate and other) to conduct its
business and own its properties as described in the Prospectus.
(d) The
Partnership has been duly organized and is validly existing and in good standing
under the laws of the State of Delaware with power and authority to conduct its
business as described in the Prospectus.
(e)
Except as reflected in or contemplated by the Registration Statement or the
Prospectus, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change in the condition of the Partnership or the General Partner,
financial or otherwise, or any transactions entered into by the Partnership or
the General Partner, other than transactions in the ordinary course of business,
which are required to be disclosed in the Registration Statement or the
Prospectus that are not so disclosed.
(f) The
respective financial statements contained in the Registration Statement and the
Prospectus fairly present the financial condition of the Partnership and the
General Partner as of the dates specified; and such financial statements have
been prepared in accordance with generally accepted accounting principles
consistently maintained throughout the periods involved, and Ernst & Young,
LLP, who has reported upon certain of the financial statements of the
Partnership and the General Partner, respectively, is an independent publicly
registered accounting firm as required by the Act and the rules and regulations
promulgated thereunder.
(g) No
consent, approval, authorization or other order of any governmental authority is
required in connection with the execution or delivery by the Partnership of this
Agreement or the issuance and sale by the Partnership of the Interests, except
such as may be required under the Act or any State securities laws.
(h) There
are no actions, suits or proceedings pending, or to the knowledge of the
Partnership, threatened against the Partnership, the General Partner or any of
their property, at law or in equity or before or by any federal or State
commission, regulatory body or administrative agency or other governmental body,
domestic or foreign, in which any adverse decision might have a materially
adverse effect on the business or property of the Partnership or the General
Partner.
(i) The
execution and delivery of this Agreement, the consummation of the transactions
herein contemplated and compliance with the terms of this Agreement by the
Partnership will not conflict with or constitute a default under the Partnership
Agreement, or any indenture, mortgage, deed of trust, lease or other agreement
or instrument to which the Partnership or General Partner is a party, or any
law, order, rule or regulation, writ, injunction or decree of any government,
governmental instrumentality or court, domestic or foreign, having jurisdiction
over the Partnership or the General Partner or any of their property, except to
the extent that the enforceability of the indemnity and/or contribution
provision of the indemnity contained in Section 7 of this Agreement may be
limited under the applicable laws and subject, as to
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enforcement,
to insolvency, bankruptcy, reorganization or similar laws of general
applicability relating to or affecting creditors’ rights and to general
equitable principles.
(j) The
Partnership has full legal right, power and authority to enter into this
Agreement and to perform the transactions contemplated hereby, except to the
extent that the enforceability of the indemnity and/or contribution provisions
contained in Section 7 of this Agreement may be limited under applicable
securities laws.
(k) At
the time of the delivery of the Interests, the Interests will have been duly
authorized and validly issued, and upon payment therefor, will be fully paid and
will conform to the description thereof contained in the Prospectus.
(l) There
are no contracts or other documents which are required to be filed as exhibits
to the Registration Statement which have been not so filed.
10.
Notice of
Termination. This
Agreement may be terminated by you or by us by giving written notice by mail,
cable or facsimile at least 10 days in advance of your or our intention to
terminate; provided, however, that any rights to receive Sales Commissions with
respect to sales of Interests made prior to such termination and any rights to
indemnification or contribution hereunder, and all representations, covenants
and agreements contained in this Agreement which, by their terms, expire or will
need to be performed after the termination date of this Agreement (including,
but not limited to, the suitability record retention and disclosure covenants
contained in Section 8 above), shall survive such termination.
11.
Governing Law.
This
Agreement is being delivered in the State of New York and shall be construed and
enforced in accordance with and governed by the laws of such State without
reference to its choice of law provisions.
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Please
acknowledge acceptance of the terms hereof by signing the two enclosed copies of
this letter and returning the same to us, whereupon this letter and your
acceptance hereof shall constitute a binding agreement between us as of the date
first above written. We will then supply to you for your files one of such
copies signed by the Partnership and the Dealer-Manager.
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Partnership
ICON
Equipment and Corporate Infrastructure Fund Fourteen,
L.P.
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| By: ICON GP 14, LLC, its General Partner | ||
| By: | ||
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Name:
Title:
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Dealer-Manager:
ICON
Securities Corp.
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Name:
Title:
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