Exhibit 1.1
SOUTHPOINT STRUCTURED ASSETS, INC.
TREASURY SECURITY-BACKED CERTIFICATES, SERIES 1996-1
UNDERWRITING AGREEMENT
November 21, 1996
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxx Xxxxxx Tower
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Southpoint Structured Assets, Inc., a Delaware corporation (the "Company"),
proposes to cause the issuance of $10,000,000 aggregate principal amount of its
Treasury Security-Backed Certificates, Series 1996-1, consisting of $5,000,000
aggregate principal amount of 6.25% Class A Certificates due August 15, 2002 and
$5,000,000 aggregate principal amount of 6.80% Class B Certificates due May 15,
2006 (collectively, the "Certificates"), to be issued under the trust agreement
specified in Schedule I hereto (the "Trust Agreement") between the Company and
the Trustee identified in such Schedule (the "Trustee"), in each case, to you.
Pursuant to the Trust Agreement, the Company and the Trustee will form the
Treasury Security-Backed Trust, Series 1996-1, Class A (the "Class A Trust") for
the purpose of issuing the Class A Certificates and the Treasury Security-Backed
Trust, Series 1996-1, Class B (the "Class B Trust") for the purpose of issuing
the Class B Certificates (the Class A Trust and the Class B Trust are
collectively referred to herein as the "Trust"). The Class A Certificates will
represent a fractional undivided interest in the Class A Trust and the principal
asset of the Class A Trust will consist of a United States Treasury Note having
an aggregate principal amount of $5,000,000, a coupon of 6.375% and a maturity
of August 15, 2002 (the "Class A Treasury Note"). The Class A Treasury Note
will be deposited into the Class A Trust by the Company subject to (i) the right
of the holder of the Class A Call Warrant to purchase the Class A Treasury Note
on any date on or after May 15, 1997 (an "Early Termination Date") at a price of
par plus accrued interest to such Early Termination Date (the "Liquidation
Price") and (ii) the right of the holder of the Class A Retained Interest to
receive on each Class A Distribution Date from payments received on the Class A
Treasury Note, a distribution equal to .125% per annum multiplied by the
principal amount of the Class A Treasury Note. The Class B Certificates will
represent a fractional undivided interest in the Class B Trust and the principal
asset of the Class B Trust will consist of a United States Treasury Note having
an aggregate principal amount of $5,000,000, a coupon of 6.875% and a maturity
of May 15, 2006 (the "Class B Treasury Note"). The Class B Treasury Note will
be deposited into the Class B Trust by the Company subject to (i) the right of
the holder of the Class B Call Warrant to purchase the Class B Treasury Note on
the Early Termination Date at the Liquidation Price and (ii) the right of the
holder of the Class B Retained Interest to receive on each Class B Distribution
Date from payments received on the Class B Treasury Note, a distribution equal
to .075% per annum multiplied by the principal amount of the Class B Treasury
Note. The Class A Treasury Note and the Class B Treasury Note are sometimes
collectively referred to herein as the "Underlying Securities." The Class A
Call Warrant and the Class B Call Warrant are collectively referred to herein as
the "Call Warrants." The Class A Retained Interest and the Class B Retained
Interest are collectively referred to herein as the "Retained Interests." The
Call Warrants and the Retained Interests are not subject to this Agreement.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement on Form S-3 (No. 333-09883), relating to certain securities to be
issued from time to time by various trusts originated by the Company. The
Company also has filed with, or proposes to file with, the Commission pursuant
to Rule 424 under the Securities Act a prospectus supplement specifically
relating to the Certificates. The registration statement as amended to the date
of this Agreement is hereinafter referred to as the "Registration Statement" and
the related prospectus in the form first used to confirm sales of the
Certificates is hereinafter referred to as the "Basic Prospectus." The Basic
Prospectus as supplemented by the prospectus supplement specifically relating to
the Certificates in the form first used to confirm sales of the Certificates is
hereinafter referred to as the "Prospectus." Any preliminary form of the
Prospectus Supplement which has heretofore been filed pursuant to Rule 424, or
prior to the effective date of the Registration Statement, pursuant to Rule
402(a) or 424(a) is hereinafter called a "Preliminary Prospectus Supplement."
Any reference to "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed under the
Exchange Act after the date of this Agreement, or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriter as follows:
1. (a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
the Underwriter, and the Underwriter agrees to purchase from the Company, the
Certificates at prices, as of the Closing Date, equal to 99% of the aggregate
principal balance of the Class A Certificates and 98.75% of the aggregate
principal balance of the Class B Certificates. There will be added to the
purchase price of the Certificates an amount equal to interest accrued thereon
from November 27, 1996 (the "Cut-off Date") to but not including the Closing
Date (defined below).
(b) The Company will deliver the Certificates against payment of the
purchase price by the Underwriter at 11:00 a.m., EST, on November 27, 1996, or
such later date as you shall designate, which date and time may be postponed by
agreement between you and the Company (such date and time of delivery and
payment for the Certificates being herein called the "Closing Date"). Delivery
of the Certificates shall be made through the services of
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the Depository Trust Company ("DTC"). Payment of the purchase price shall be
made by wire transfer of immediately available funds to an account previously
designated to the Underwriter by the Company.
2. The Company understands that the Underwriter intends (i) to make a
public offering of the Certificates and (ii) initially to offer the Certificates
upon the terms set forth in the Prospectus, and the Underwriter agrees that all
such offers and sales by such Underwriter shall be made in compliance with all
applicable laws and regulations.
3. The Company represents and warrants to each Underwriter that:
(a) The Registration Statement on Form S-3 (No. 333-09883) in
respect of the Certificates has been filed with the Commission in the form
heretofore delivered or to be delivered and such Registration Statement in
such form has been declared effective by the Commission and no stop order
suspending the effectiveness of such Registration Statement has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission.
(b) The Certificates meet the requirements for use of Form S-3 under
the Securities Act, and the Registration Statement and the Prospectus
conform, and any amendments or supplements thereto will conform, in all
material respects to the requirements of the Securities Act and the rules
and regulations of the Commission thereunder, and the Registration
Statement, as of the applicable effective date, did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and the Prospectus, including any amendments or supplements
thereto, as of the date of the Prospectus Supplement and as of the Closing
Date, does not and will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. The conditions to the use by the Company of a registration
statement on Form S-3 under the Securities Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus.
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with corporate power and authority to enter into and perform its
obligations under this Agreement and the Trust Agreement; and the Company
is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which the ownership or lease of its
properties or the conduct of its business requires such qualification,
except where the failure to be so qualified, considering all such cases in
the aggregate, does not have a material adverse effect on the business or
properties of the Company.
(d) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding agreement of the Company
enforceable in accordance with its terms, except that the enforceability
hereof may be subject to
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(i) bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally,
and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and
except that rights to indemnification hereunder may be limited by public
policy under applicable securities laws.
(e) The Certificates have been duly authorized by the Company and,
when executed, authenticated and delivered in accordance with the Trust
Agreement and delivered to you pursuant to this Agreement, such
Certificates will have been duly and validly issued and outstanding and
will be entitled to the benefits provided by the Trust Agreement; at the
Closing Date the Trust Agreement will be duly authorized, executed and
delivered by the Company and will constitute a valid and binding agreement
of the Company enforceable in accordance with its terms, except that the
enforceability thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and at the Closing Date the Trust
Agreement and the Certificates will conform in all material respects to the
respective descriptions thereof in the Prospectus and the representations
and warranties of the Company in the Trust Agreement will be true and
correct.
(f) The issue and sale of the Certificates, the compliance by the
Company with all applicable provisions of the Certificates, the Trust
Agreement and this Agreement, and the consummation of the transactions
herein or therein contemplated will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, mortgage, pledge, charge,
security interest or encumbrance (collectively, "Liens") upon any property
or assets of the Company pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
is a party or by which the Company is bound or to which any of the property
or assets of the Company is subject, nor will any such action result in any
violation of the provisions of the Certificate of Incorporation or the by-
laws of the Company or of any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its properties; and no consent, notice, approvals,
authorization, order, registrations or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Certificates or the consummation by the Company of the other
transactions contemplated by this Agreement or the Trust Agreement except
such as have been obtained and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Certificates by the Underwriter.
(g) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company is a
party or of which any property of the Company is the subject which, if
determined adversely to such person would individually or in the aggregate
have a material adverse effect on
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the financial position, earnings, management, stockholder's equity or
results of operations of the Company or which might interfere with or
adversely affect the consummation of the transactions contemplated herein
or in the Trust Agreement; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(h) At the time of execution and delivery of the Trust Agreement,
the Company will have good and marketable title to the Underlying
Securities being transferred to the Trust pursuant thereto, free and clear
of any Liens, and will not have assigned to any person any of its rights,
title or interest therein; the Company will have the power and authority to
transfer the Underlying Securities to the Trust on the Closing Date and the
Trust will have been assigned all right, title and interest held by the
Company in and to the Underlying Securities (exclusive of the Call Warrants
and the Retained Interests).
(i) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement, the Trust
Agreement and the Certificates have been or will be paid at or prior to the
Closing Date.
(j) The Trust created by the Trust Agreement is not required to be
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
4. The Underwriter represents and warrants to and agrees with the Company
that such Underwriter will have funds available at First Tennessee Bank in the
Underwriter's account at such bank at the time all documents are executed and
the closing of the sale of the Certificates is completed except for the transfer
of funds and the delivery of the Certificates. Such funds will be available for
immediate transfer into the account of the Company maintained at such bank.
5. The Company covenants and agrees with the Underwriter as follows:
(a) to cause the Prospectus to be transmitted to the Commission for
filing pursuant to Rule 424(b) under the Securities Act by means reasonably
calculated to result in filing with the Commission pursuant to said rule;
(b) to deliver to the Underwriter, at the expense of the Company, a
signed copy of the Registration Statement (as originally filed) and each
amendment thereto, in each case including exhibits and, during the period
mentioned in paragraph (e) below, as many copies of the Prospectus
(including all amendments and supplements thereto) as you may reasonably
request;
(c) from the date hereof and prior to the Closing Date, to furnish
to you a copy of any proposed amendment or supplement to the Registration
Statement or the Prospectus, for your review, and not to file any such
proposed amendment or supplement to which you reasonably object;
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(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company or the Trust
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Certificates, and during such
same period, to advise you promptly, and to confirm such advice in writing,
(i) when any amendment to the Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for any additional information, (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the initiation or threatening of any proceeding for that purpose, and
(iv) of the receipt by the Company or the Trust of any notification with
respect to any suspension of the qualification of the Certificates for
offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its best efforts to prevent the
issuance of any such stop order or notification and, if issued, to obtain
as soon as possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Certificates in the opinion of counsel for the Underwriter
a prospectus relating to the Certificates is required by law to be
delivered in connection with sales by the Underwriter or dealer, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at the expense of the
Company, to the Underwriter and to the dealers (whose names and addressees
you will furnish to the Company) to which Certificates may have been sold
by you and to any other dealers upon request, such amendments or
supplements to the Prospectus as may be necessary so that the statements in
the Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Certificates for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Certificates and to pay all
fees and expenses (including fees and disbursements of counsel to the
Underwriter) reasonably incurred in connection with such qualification and
in connection with the determination of the eligibility of the Certificates
for investment under the laws of such jurisdictions as you may designate;
provided, however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to general or unlimited service of process
in any jurisdiction where it is not now so subject;
(g) to make generally available to its security holders and to you
as soon as practicable, but no later than sixteen months after the
effective date of the Registration
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Statement, an earnings statement covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring
after the effective date of the Registration Statement, which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder;
(h) so long as the Certificates are outstanding, to furnish to you
copies of all reports or other communications (financial or other)
furnished to holders of Certificates, and copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange;
(i) to pay all costs and expenses incident to the performance of its
obligations hereunder, including without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Certificates,
including any expenses of the Trustee, (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration Statement,
the Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Certificates under the laws of such jurisdictions as the
Underwriters may designate (including fees of counsel for the Underwriters
and their disbursements), (iv) in connection with the listing of the
Certificates on any stock exchange, (v) related to any filing with National
Association of Securities Dealers, Inc., (vi) in connection with the
printing (including word processing and duplication costs) and delivery of
this Agreement, the Trust Agreement and the furnishing to Underwriters and
dealers of copies of the Registration Statement and the Prospectus,
including mailing and shipping, as herein provided and (vii) payable to
rating agencies in connection with the rating of the Certificates; and
(j) to file with the Commission within fifteen days of the issuance
of the Certificates a Current Report on Form 8-K (for purposes of filing
the Trust Agreement).
6. The obligations of the Underwriter hereunder shall be subject to the
following conditions:
(a) the representations and warranties of the Company contained
herein are true and correct on and as of the Closing Date as if made on and
as of the Closing Date and the Company shall have complied with all
agreements and all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for such
filing by the rules and regulations under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; and all requests for additional
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information on the part of the Commission shall have been complied with to
your satisfaction;
(c) since the respective dates as of which information is given in
the Registration Statement and the Prospectus there shall not have been any
material adverse change or any development involving a material adverse
change, or any development with respect to the Company, otherwise than as
set forth or contemplated in the Prospectus, the effect of which in the
judgment of the Underwriter makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Certificates on the
terms and in the manner contemplated in the Prospectus;
(d) the Underwriter shall have received on and as of the Closing
Date a certificate of an executive officer of the Company satisfactory to
you to the effect set forth in subsections (a), (b) and (c) of this
Section.
(e) Xxxxxxx and Xxxxxx, special counsel for the Company, shall have
furnished to you their written opinion, dated the Closing Date,
substantially to the effect set forth in Exhibit A;
(f) Xxxxxxx and Xxxxxx, special tax counsel for the Company, shall
have furnished to you their written opinion, dated the Closing Date,
substantially to the effect set forth in Exhibit B;
(g) Hamb & Xxxxxxxxxxxx, counsel to the Trustee shall have furnished
to you their opinion, dated the Closing Date, substantially to the effect
set forth in Exhibit C, in form and substance satisfactory to you;
(h) the Underwriter shall have received on and as of the Closing
Date an opinion of Xxxxxxx and Xxxxxx, counsel to the Underwriter,
substantially to the effect set forth in Exhibit D in form and substance
satisfactory to you;
(i) the Certificates shall have been approved for listing on the New
York Stock Exchange, subject to official notice of issuance;
(j) The Class A Certificates shall have been rated "AAA" and the
Class B Certificates shall have been rated "AAA" by Standard & Poor's
Ratings Services; and
(k) on or prior to the Closing Date, the Company shall have
furnished to the Underwriter such further certificates and documents as the
Underwriter shall reasonably request.
7. The Company agrees to indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including without
limitation the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by
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any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information furnished to the Company by the Underwriter expressly for use
therein as described in Exhibit E hereto (the "Underwriter Information");
provided that the foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter (or to the benefit of any
person controlling such Underwriter) from whom the person asserting any such
losses, claims, damages or liabilities purchased Certificates if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Certificates to such
person.
The Underwriter agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and each person who
controls the Company within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference the Underwriter
Information.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriter
and such control persons
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of the Underwriter shall be designated in writing by the Underwriter and any
such separate firm for the Company, its directors, its officers who sign the
Registration Statement and such control persons of the Company or authorized
representatives shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriter on the other hand from the offering
of the Certificates or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriter on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriter on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Certificates (before
deducting expenses) received by the Company and the total underwriting discounts
and the commissions received by the Underwriter bear to the aggregate public
offering price of the Certificates. The relative fault of the Company on the one
hand and the Underwriter on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this
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Section 9, in no event shall the Underwriter be required to contribute any
amount in excess of the amount by which the total price at which the
Certificates underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in this Section 7 are
in addition to any liability which the Indemnifying Persons may otherwise have
to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Underwriter or any person controlling the Underwriter or by or on behalf of
the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Certificates.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Underwriter, by notice given to the
Company, if after the execution and delivery of this Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange and the National Association of Securities Dealers,
Inc., (ii) trading of any securities of or guaranteed by the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Underwriter, is material and adverse and which, in the judgment of the
Underwriter, makes it impracticable to market the Certificates on the terms and
in the manner contemplated in the Prospectus.
9. If this Agreement shall be terminated by the Underwriter because of
any failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement or any
condition of the Underwriter's obligations cannot be fulfilled, the Company
agrees to reimburse the Underwriter for all out-of-pocket expenses (including
the fees and expenses of their counsel) reasonably incurred by such Underwriter
in connection with this Agreement or the offering of Certificates.
10. This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriter, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be
-11-
construed to give any other person, firm or corporation any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. No purchaser of Certificates from the Underwriter shall be
deemed to be a successor by reason merely of such purchase.
11. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Underwriter
shall be given at the address set forth on the first page hereof. Notices to the
Company shall be given to it at Southpoint Structured Assets, Inc., 00 Xxxxx
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, (fax: 000-000-0000); Attention: C. Xxxxx
Xxxxxx.
-12-
12. This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
Very truly yours,
Southpoint Structured Assets, Inc.
By
---------------------------------
C. Xxxxx Xxxxxx
President
Accepted: November 21, 1996
By: Xxxxxx Xxxxxx & Company, Inc.
By
--------------------------------
Xxxx X. XxXxxxxx
First Vice President
-13-
Schedule I
Underwriting Agreement
dated: November 21, 1996
Registration Statement No.: 333-09883
Title of Certificates: Treasury Security-Backed Certificates, Series
1996-1 $5,000,000 6.25% Class A Certificates due
August 15, 2002 $5,000,000 6.80% Class B
Certificates due May 15, 2006
Underlying Securities: $5,000,000 6.375% United States Treasury Note due
August 15, 2002 subject to the Class A Call Warrant
and exclusive of the Class A Retained
Interest. $5,000,000 6.875% United States Treasury
Note due May 15, 2006 subject to the Class B Call
Warrant and exclusive of the Class B Retained
Interest
Aggregate Principal Amount: $5,000,000 Class A Certificates
$5,000,000 Class B Certificates
Price to Underwriter: Class A Certificates: $4,950,000 (99% of the
principal amount of the Class A Certificates, plus
accrued interest, if any, from November 27, 1996 to
the Closing Date) Class B Certificates: $4,937,500
(98.75% of the principal amount of the Class B
Certificates, plus accrued interest, if any, from
November 27, 1996 to the Closing Date)
Trust Agreement: Standard Terms for Trust Agreements, dated as of
November 1, 1996, as supplemented by the Series
Supplement, dated as of November 27, 1996, between
the Company and Bank One, West Virginia, N.A., as
Trustee
Maturity: Class A Certificates: August 15, 2002
Class B Certificates: May 15, 2006
Interest Rate: Class A Certificates: 6.25%
Class B Certificates: 6.80%
Interest Payment Dates: Class A Certificates: February 15 and August 15
Class B Certificates: May 15 and November 15
Early Termination
Provisions: Any Class of Certificates may be paid in full on
any date on or after May 15, 1997 in an amount
equal to par plus accrued interest
Closing Date and Time of
Delivery: November 27, 1996, 11:00 a.m. (EST)
Closing Location: Offices of Xxxxxxx and Xxxxxx, 000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
I-2
Exhibit A
[Xxxxxxx and Xxxxxx Letterhead]
[Date]
Southpoint Structured Assets, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxx Xxxxxx Tower
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
New York Stock Exchange, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Southpoint Structured Assets, Inc.
Treasury Security-Backed Certificates, Series 1996-1
----------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Southpoint Structured Assets, Inc. (the
"Company") in connection with the issuance and sale of Treasury Security-Backed
Certificates, Series 1996-1, consisting of two classes designated as Class A
Certificates and Class B Certificates (collectively, the "Certificates")
pursuant to a Standard Terms for Trust Agreements, dated as of November 1, 1996
as supplemented by the Series Supplement, dated as of November 27, 1996 (the
"Trust Agreement"), between the Company and Bank One, West Virginia, N.A., as
trustee (the "Trustee").
The Class A Certificates will be issued by the Treasury Security-Backed
Trust, Series 1996-1, Class A (the "Class A Trust") and the Class B Certificates
will be issued by the Treasury Security-Backed Trust, Series 1996-1, Class B
(the "Class B Trust") both to be formed pursuant to the Trust Agreement (the
Class A Trust and the Class B Trust are collectively referred to herein as the
"Trusts"). The Class A Certificates will represent a fractional undivided
interest in the Class A Trust and the principal asset of the Class A Trust will
consist of a United States Treasury Note having an aggregate principal amount of
$5,000,000, a coupon of 6.375% and a maturity of August 15, 2002 (the "Class A
Treasury Note;"). The Class A Treasury Note will be deposited into the Class A
Trust by the Company subject to (i) the right of the holder of the Class A Call
Warrant to purchase the
Class A Treasury Note on any date on or after May 15, 1997 (an "Early
Termination Date") at a price of par plus accrued interest to such Early
Termination Date (the "Liquidation Price") and (ii) the right of the holder of
the Class A Retained Interest to receive on each Class A Distribution Date from
payments received on the Class A Treasury Note, a distribution equal to .125%
per annum multiplied by the principal amount of the Class A Treasury Note. The
Class B Certificates will represent a fractional undivided interest in the Class
B Trust and the principal asset of the Class B Trust will consist of a United
States Treasury Note having an aggregate principal amount of $5,000,000, a
coupon of 6.875% and a maturity of May 15, 2006 (the "Class B Treasury Note").
The Class B Treasury Note will be deposited into the Class B Trust by the
Depositor subject to (i) the right of the holder of the Class B Call Warrant to
purchase the Class B Treasury Note on the Early Termination Date at the
Liquidation Price and (ii) the right of the holder of the Class B Retained
Interest to receive on each Class B Distribution Date from payments received on
the Class B Treasury Note, a distribution equal to .075% per annum multiplied by
the principal amount of the Class B Treasury Note. The Class A Treasury Note and
the Class B Treasury Note are collectively referred to herein as the "Underlying
Securities."
The Certificates are included in a Registration Statement on Form S-3 (File
No. 333-09883) filed by the Company with the Securities and Exchange Commission
(the "Commission") on August 9, 1996, as amended by Amendment No. 1 to
Registration Statement filed on October 1, 1996, Amendment No. 2 to Registration
Statement filed on October 21, 1996 and Amendment No. 3 to Registration
Statement filed on November 13, 1996 and declared effective on November 15, 1996
(as amended as of the date hereof, the "Registration Statement"), and were
offered by the prospectus dated November 15, 1996, as supplemented by the
prospectus supplement dated November 21, 1996 (together, the "Prospectus"),
filed with the Commission pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Securities Act of 1933, as amended (the "Act").
The Company will cause the issuance of the Certificates to Xxxxxx Xxxxxx &
Company, Inc. (the "Underwriter") pursuant to an Underwriting Agreement, dated
November 21, 1996, between the Company and the Underwriter (the "Underwriting
Agreement"; the Trust Agreement and the Underwriting Agreement are collectively
referred to herein as the "Agreements"). Capitalized terms used but not defined
herein shall have the meanings set forth in the Agreements. This opinion letter
is rendered pursuant to Section 6(e) of the Underwriting Agreement.
In arriving at the opinion expressed below, we have examined and relied on
the following documents:
(a) executed copies of the Agreements;
(b) the Certificate of Incorporation and By-Laws of the Company;
(c) good standing certificate from the Secretary of State of the
State of Delaware concerning the Company;
A-2
(d) resolutions adopted by the Board of Directors of the Company by
written unanimous consent, authorizing, among other things, the issuance of
the Certificates;
(e) the President's Certificate executed by the President of the
Company, authorizing, among other things, the issuance of the Certificates;
(f) the Registration Statement;
(g) the Prospectus;
(h) the forms of the Certificates; and
(i) the documents delivered by the Company on the Closing Date
pursuant to the Agreements.
In addition, we have examined and relied, as to factual matters, on the
representations of the Company in the Agreements and on originals or copies
certified or otherwise identified to our satisfaction of all such corporate
records of the Company and such other instruments and other certificates of
public officials, officers and representatives of the Company and the Trustee,
and we have made such investigations of law, as we have deemed appropriate as a
basis for the opinion expressed below.
Based upon such examination and having regard for legal considerations
which we deem relevant, we are of the following opinion:
1. The Registration Statement has become effective under the Act, and,
to our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn, and no
proceedings for that purpose have been instituted or threatened under
Section 8(d) of the Act.
2. The Registration Statement, as of the date it became effective, and
the Prospectus, as of the date of the Prospectus Supplement, other than any
financial or statistical information contained therein as to which we
express no opinion, complied as to form in all material respects with the
requirements of the Act and the applicable rules and regulations
thereunder.
3. To our knowledge, there are no material contracts, indentures, or
other documents of a character required to be described or referred to in
either the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement other than those described or
referred to therein or filed as exhibits thereto.
4. The Certificates, when validly authorized, duly executed,
authenticated, issued and delivered in accordance with the Trust Agreement,
will be entitled to the benefits of the Trust Agreement.
A-3
5. The statements set forth in the Prospectus under the headings
"Description of the Certificates" and "Description of the Trust Agreement,"
insofar as such statements purport to summarize certain provisions of the
Certificates and the Trust Agreement, are correct in all material respects.
The statements set forth in the Prospectus under the headings "Federal
Income Tax Consequences," and "ERISA Considerations," to the extent that
they constitute matters of federal law or legal conclusions with respect
thereto, while not purporting to discuss all possible consequences of
investment in the Certificates, are correct in all material respects with
respect to those consequences or matters that are discussed therein.
6. The Trust created by the Trust Agreement is not required to be
registered under the Investment Company Act of 1940, as amended.
7. The Company is duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
has the requisite power and authority, corporate or other, to own its
properties and conduct its business, as presently conducted by it, and to
enter into and perform its obligations under the Agreements and the
Certificates.
8. The Certificates have been duly authorized by the Board of
Directors of the Company.
9. The Trust Agreement has been duly qualified under the Trust
Indenture Act of 1939, as amended.
10. Each of the Agreements has been duly authorized, executed and
delivered by the Company and, upon due authorization, execution and
delivery by the other parties thereto, each will constitute a valid, legal
and binding agreement of the Company, enforceable against the Company in
accordance with its terms subject to: (1) limitations imposed by
bankruptcy, insolvency, reorganization, arrangement, moratorium or other
laws relating to or affecting the enforcement of creditors' rights
generally; (2) general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law; and (3)
rights to indemnification which may be limited by applicable law or
equitable principles or otherwise unenforceable as against public policy.
In addition, we have participated in conferences with your representatives
concerning the Registration Statement and the Prospectus and have considered the
matters required to be stated therein and the statements contained therein,
although we have not independently verified the accuracy, completeness or
fairness of such statements (except as described in paragraph 5 above). Based
upon and subject to the foregoing, nothing has come to our attention to cause us
to believe that the Registration Statement (excluding any exhibits filed
therewith), as of the date it became effective, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Prospectus
A-4
Supplement and as of the Closing Date, contained or contains an untrue statement
of a material fact or omitted or omits to state a 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 (it being understood
that we have not been requested to and we do not make any comment in this
paragraph with respect to the financial statements, schedules and other
financial and statistical information contained in the Registration Statement or
the Prospectus).
With your permission we have assumed the following: (a) the authenticity of
original documents and the genuineness of all signatures; (b) the conformity to
the originals of all documents submitted to us as copies; (c) the truth,
accuracy and completeness of the information, factual matters, representations
and warranties contained in the records, documents, instruments and certificates
we have reviewed; and (d) except as specifically covered in the opinions set
forth above, the due authorization, execution and delivery on behalf of the
respective parties thereto of documents referred to herein and the legal, valid
and binding effect thereof on such parties.
Whenever a statement herein is qualified by the phrase "to our knowledge,"
it is intended to indicate that, during the course of our representation of the
Company, no information that would give us current actual knowledge of the
inaccuracy of such statement has come to the attention of those attorneys
currently in this firm who have rendered legal services in connection with this
opinion letter. However, we have not undertaken any independent investigation to
determine the accuracy of any such statement, and any limited inquiry undertaken
by us during the preparation of this opinion letter should not be regarded as
such an investigation; no inference as to our knowledge of any matters bearing
on the accuracy of any such statement should be drawn from the fact of our
representation of the Company.
With respect to our opinion set forth in paragraph 2, in passing on the
form of Registration Statement and the Prospectus, we have necessarily assumed
the correctness and completeness of the statements made therein.
This opinion letter is solely for your benefit and may not be relied upon
or used by, circulated, quoted or referred to, nor may copies hereof be
delivered to, any other person without our prior written approval. We disclaim
any obligation to update this opinion letter for events occurring or coming to
our attention after the date hereof.
Respectfully submitted,
Xxxxxxx and Xxxxxx
A-5
Exhibit B
[Xxxxxxx and Xxxxxx Letterhead]
[Date]
Southpoint Structured Assets, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxx Xxxxxx Tower
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Re: Southpoint Structured Assets, Inc.
Treasury Security-Backed Certificates, Series 1996-1
____________________________________________________
Ladies and Gentlemen:
We have acted as special counsel to Southpoint Structured Assets, Inc. (the
"Company") in connection with the issuance and sale of Treasury Security-Backed
Certificates, Series 1996-1, consisting of two classes designated as Class A
Certificates and Class B Certificates (collectively, the "Certificates")
pursuant to a Standard Terms for Trust Agreements, dated as of November 1, 1996
as supplemented by the Series Supplement, dated as of November 27, 1996 (the
"Trust Agreement"), among the Company and Bank One, West Virginia, N.A., as
trustee (the "Trustee").
The Class A Certificates will be issued by the Treasury Security-Backed
Trust, Series 1996-1, Class A (the "Class A Trust") and the Class B Certificates
will be issued by the Treasury Security-Backed Trust, Series 1996-1, Class B
(the "Class B Trust") both to be formed pursuant to the Trust Agreement (the
Class A Trust and the Class B Trust are collectively referred to herein as the
"Trusts"). The Class A Certificates will represent a fractional undivided
interest in the Class A Trust and the principal asset of the Class A Trust will
consist of a United States Treasury Note having an aggregate principal amount of
$5,000,000, a coupon of 6.375% and a maturity of August 15, 2002 (the "Class A
Treasury Note"). The Class A Treasury Note will be deposited into the Class A
Trust subject to (i) the right of the holder of the Class A Call Warrant to
purchase the Class A Treasury Note on any date on or after May 15, 1997 (an
"Early Termination Date") at a price of par plus accrued interest to such Early
Termination Date (the "Liquidation Price") and (ii) the right of the holder of
the Class A Retained Interest to receive on each Class A Distribution Date from
payments received on the Class A Treasury Note, a distribution equal to .125%
per annum multiplied by the principal amount of the Class A Treasury Note. The
Class B Certificates will represent a fractional undivided interest in the Class
B Trust and the principal asset of the Class B Trust will consist of a United
States Treasury Note having an aggregate principal amount of $5,000,000, a
coupon of 6.875% and a maturity of May 15, 2006 (the "Class B Treasury Note").
The Class B Treasury Note will be deposited into the Class B Trust subject to
(i) the right of the holder of the Class B Call Warrant to purchase the Class B
Treasury Note on the Early Termination Date at the Liquidation Price and (ii)
the right of the holder of the Class B Retained Interest to receive on each
Class B Distribution Date from payments received on the Class B Treasury Note, a
distribution equal to .075% per annum multiplied by the principal amount of the
Class B Treasury Note. The Class A Treasury Note and the Class B Treasury Note
are collectively referred to herein as the "Underlying Securities;". The Trustee
will hold legal title to the Underlying Securities and other assets of the
Trusts for the benefit of the related Class of Certificateholders, but will have
no power to reinvest proceeds attributable to the Underlying Securities or other
assets of the Trusts or to vary investments in the Trusts in any manner.
The Certificates are included in a Registration Statement on Form S-3 (File
No. 333-09883) filed by the Company with the Securities and Exchange Commission
(the "Commission") on August 9, 1996, as amended by Amendment No. 1 to
Registration Statement filed on October 1, 1996, Amendment No. 2 to Registration
Statement filed on October 21, 1996 and Amendment No. 3 to Registration
Statement filed on November 13, 1996 and declared effective on November 15, 1996
(as amended as of the date hereof, the "Registration Statement"), and were
offered by the prospectus dated November 14, 1996, as supplemented by the
prospectus supplement dated November 21, 1996 (together, the "Prospectus"),
filed with the Commission pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Securities Act of 1933, as amended (the "Act").
The Company will cause the issuance of the Certificates to Xxxxxx Xxxxxx &
Company, Inc. (the "Underwriter") pursuant to an Underwriting Agreement, dated
November 21, 1996, between the Company and the Underwriter (the "Underwriting
Agreement"; the Trust Agreement and the Underwriting Agreement are collectively
referred to herein as the "Agreements"). Capitalized terms used but not defined
herein shall have the meanings set forth in the Agreements. This opinion letter
is rendered pursuant to Section 8(f) of the Underwriting Agreement.
In arriving at the opinion expressed below, we have examined and relied on
the following documents each of which we have assumed has been duly and validly
authorized, executed and delivered by all parties thereto other than the
Company:
(a) executed copies of the Agreements;
(b) the Prospectus;
(c) the forms of the Certificates; and
B-2
(d) the documents delivered by the Company on the Closing Date
pursuant to the Agreements.
In addition, we have relied, as to factual matters, on the representations
of the Company in the Agreements and on originals or copies certified or
otherwise identified to our satisfaction of all such corporate records of the
Company and such other instruments and other certificates of public officials,
officers and representatives of the Company and the Trustee, without any
investigation thereof. However, we have made such investigations of law, as we
have deemed appropriate as a basis for the opinion expressed below. Our opinion
is subject to the qualification that facts different from those set forth in the
Agreements and all such instruments or certificates may affect or prevent us
from rendering an opinion as expressed herein.
Our opinion is based on current provisions of the Internal Revenue Code of
1986, as amended (the "Code"), the Treasury Regulations promulgated thereunder,
published pronouncements of the Internal Revenue Service, and case law, any of
which may be changed at any time with retroactive effect. Further, you should be
aware that opinions of counsel are not binding on the Internal Revenue Service
or the courts. We note that the Company has not requested a ruling from the
Internal Revenue Service as to the matters covered by our opinion. We express no
opinion either as to any matters not specifically covered by the following
opinion or as to the effect on the matters covered by this opinion of the laws
of any other jurisdictions. Additionally, we undertake no obligation to update
this opinion in the event there is either a change in the legal authorities,
facts, including the taking of any action by any party to any of the
transactions described in the Prospectus pursuant to any opinion of counsel as
required by any of the documents relating to such transactions, or documents on
which this opinion is based, or an inaccuracy in any of the representations or
warranties upon which we have relied in rendering this opinion.
On the basis of the foregoing and in reliance thereon and our consideration
of such other matters of fact and questions of law as we have deemed necessary,
and assuming continuing compliance with the Trust Agreement, we are of the
opinion that:
(i) subject to the qualifications referred to herein, for Federal
income tax purposes, each Trust create under the Trust Agreement will be
treated as a grantor trust under Subpart E, Part I, of Subchapter J of the
Code and not as an association taxable as a corporation under the Code, and
under Section 671 of the Code, each Certificateholder will be treated as
the owner of a pro rata interest in the property of the corresponding
Trust; and,
(ii) the applicable statements contained in the Prospectus Supplement,
under the caption "Federal Income Tax Consequences," while not purporting
to discuss all possible federal income tax consequences of an investment in
Certificates, is materially accurate with respect to those tax consequences
which are discussed.
We hereby consent to the filing of this opinion letter as an Exhibit to the
Registration Statement and to the references to our firm under the captions
"Federal Income Tax
B-3
Consequences" and "Legal Opinions" in the Prospectus without admitting that we
are "experts" within the meaning of the Act, and the rules and regulations
thereunder, with respect to any part of the Registration Statement.
Respectfully submitted,
Xxxxxxx and Xxxxxx
JDBerry/JMTrofa
B-4
EXHIBIT C
[COUNSEL TO TRUSTEE LETTERHEAD]
, 199
-------- --
Southpoint Structured Assets, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Bank One, West Virginia, N.A.
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxx Xxxxxx Tower
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
We have acted as special counsel to Bank One, West Virginia, N.A. in its
capacity as trustee (the "Trustee") in connection with the issuance and sale by
the Company of Treasury Security-Backed Certificates, Series 1996-1 (the
"Certificates") pursuant to a Standard Terms for Trust Agreements, dated as of
November 1, 1996 as supplemented by the Series Supplement, dated as of November
26, 1996 (the "Trust Agreement"), among the Company and the Trustee. The
Certificates consist of two classes designated as Class A and Class B
Certificates. The Class A Certificates and the Class B Certificates are referred
to herein as the "Offered Certificates."
Based on the foregoing and subject to the qualifications and matters of
reliance set forth herein, it is our opinion that:
1. The Trustee is a national banking association duly organized,
validly existing and in good standing as a under the laws of the United
States of America, with full corporate and trust power and authority to
conduct its business and affairs as a Trustee.
2. The Trustee has full corporate power and authority to execute and
deliver the Trust Agreement and the Certificates and to perform its
obligations thereunder.
3. The Trustee has duly accepted the office of trustee under the Trust
Agreement.
4. The Trustee has duly authorized, executed, issued and delivered the
Trust Agreement and has duly and validly authorized, executed, issued,
delivered and authenticated the Certificates as the Trustee.
5. The Trust Agreement constitutes the legal, valid and binding
agreements of the Trustee, enforceable against the Trustee in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the rights
of creditors generally and by general principles of equity and the
discretion of the court, regardless of whether such enforcement is
considered in a proceeding in equity or at law, and except as
enforceability may be determined according to or limited by the laws of
jurisdictions other than those specified below.
In rendering the foregoing opinion, we have assumed that the Trust
Agreement have been duly authorized, executed and delivered by the other parties
thereto and are valid, legal, binding and enforceable obligations of such
parties.
We express no opinion as to any matter other than as expressly set forth
above, and, in conjunction therewith, we specifically express no opinion as to
the status of the Certificates or the Trust Fund under any federal or state
securities laws, including, but not limited to, the Securities Act of 1933, as
amended, the Trust Indenture Act of 1939, as amended, and the Investment Company
Act of 1940, as amended.
This opinion is as of the date hereof and we undertake no, and disclaim
any, obligation to advise you of any change in any matter set forth herein. This
opinion has been furnished to you at your request in connection with the
transactions described herein, and it may not be relied upon by you for any
other purpose or by any other person without our prior written consent.
We are admitted to practice law under the laws of the State of West
Virginia and the opinion set forth above is limited to the laws of the State of
West Virginia and the laws of the United States of America.
Very truly yours,
[Counsel to the Trustee]
C-2
EXHIBIT D
[COUNSEL TO THE UNDERWRITER LETTERHEAD]
, 199
------- --
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxx Xxxxxx Tower
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Re: Southpoint Structured Assets, Inc.
Treasury Security-Backed Certificates, Series 1996-1
----------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Xxxxxx Xxxxxx & Company, Inc. (the
"Underwriter") in connection with the sale by Southpoint Structured Assets,
Inc., a Delaware corporation (the "Company"), and the purchase by the
Underwriter pursuant to an underwriting agreement dated November 21, 1996 (the
"Underwriting Agreement") of certificates entitled Treasury Security-Backed
Certificates, Series 1996-1, Class A Certificates and Class B Certificates (the
"Certificates"). The Certificates are issued pursuant to a Standard Terms for
Trust Agreements, dated as of November 1, 1996, as amended by a Series
Supplement, dated as of November 27, 1996 (the "Trust Agreement") between the
Company and Bank One, West Virginia as trustee (the "Trustee"). The Class A
Certificates will be issued by the Treasury Security-Backed Trust, Series 1996-
1, Class A (the "Class A Trust") and the Class B Certificates will be issued by
the Treasury Security-Backed Trust, Series 1996-1, Class B (the "Class B Trust")
both to be formed pursuant to the Trust Agreement. The Class A Certificates will
represent a fractional undivided interest in the Class A Trust and the principal
asset of the Class A Trust will consist of a United States Treasury Note having
an aggregate principal amount of $5,000,000, a coupon of 6.375% and a maturity
of August 15, 2002 (the "Class A Treasury Note"). The Class A Treasury Note
will be deposited by the Company into the Class A Trust subject to (i) the right
of the holder of the Class A Call Warrant to purchase the Class A Treasury Note
on any date on or after May 15, 1997 (an "Early Termination Date") at a price of
par plus accrued interest to such Early Termination Date (the "Liquidation
Price") and (ii) the right of the holder of the Class A Retained Interest to
receive on each Class A Distribution Date from payments received on the Class A
Treasury Note, a distribution equal to .125% per annum multiplied by the
principal amount of the Class A Treasury Note. The Class B Certificates will
represent a fractional undivided interest in the Class B Trust and the principal
asset of the Class B Trust will consist of a United States Treasury Note having
an aggregate principal amount of $5,000,000, a coupon of 6.875% and a maturity
of May 15, 2006 (the "Class B
Treasury Note"). The Class B Treasury Note will be deposited into the Class B
Trust by the Depositor subject to (i) the right of the holder of the Class B
Call Warrant to purchase the Class B Treasury Note on the Early Termination Date
at the Liquidation Price and (ii) the right of the holder of the Class B
Retained Interest to receive on each Class B Distribution Date from payments
received on the Class B Treasury Note, a distribution equal to .075% per annum
multiplied by the principal amount of the Class B Treasury Note (the "Class B
Interest Strip"). The Class A Treasury Note and the Class B Treasury Note are
collectively referred to herein as the "Underlying Securities." Capitalized
terms used, but not defined herein, shall have the meanings assigned to such
terms in the Trust Agreement.
The Certificates are included in a Registration Statement on Form S-3 (File
No. 333-09883) filed by the Company with the Securities and Exchange Commission
(the "Commission") on August 9, 1996, as amended by Amendment No. 1 to
Registration Statement filed on October 1, 1996, Amendment No. 2 to Registration
Statement filed on October 21, 1996 and Amendment No. 3 to Registration
Statement filed on November 13, 1996 and declared effective on November 15, 1996
(as amended as of the date hereof, the "Registration Statement"), and were
offered by the prospectus dated November 15, 1996, as supplemented by the
prospectus supplement dated November 21, 1996 (together, the "Prospectus"),
filed with the Commission pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Securities Act of 1933, as amended (the "Act").
We have examined such documents and records as we deemed appropriate,
including the following:
1. Copy of the Certificate of Incorporation of the Company and all
amendments thereto, certified by the Secretary of State of the State of
Delaware to be a true and correct copy.
2. Copy of the By-Laws of the Company certified by the Secretary of
the Company to be a true and correct copy.
3. Certificate of the Secretary of State of the State of Delaware,
dated as of recent date, to the effect that the Company is in good standing
under the laws of the State of Delaware.
4. Copy of resolutions adopted by the Board of Directors of the
Company in connection with the authorization, issuance and sale of the
Certificates, certified by the Secretary of Company to be a true and
correct copy.
5. Officer's Certificate of the Company pursuant to Section 6(d) of
the Underwriting Agreement.
6. Signed copy of the Underwriting Agreement.
7. Signed copy of the Trust Agreement.
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8. Specimens of the Certificates.
9. Signed copies of the Company's registration statement (File No.
333-9883) on Form S-3 filed by the Company with the Securities and Exchange
Commission relating to Trust Certificates (the registration statement in
the form in which it became effective being hereinafter called the
"Registration Statement").
10. The final form of a prospectus dated November 15, 1996 (the
"Basic Prospectus").
11. The final form of a supplement dated November 21, 1996 to the
Basic Prospectus relating specifically to the Certificates (the "Prospectus
Supplement"; the Basic Prospectus and Prospectus Supplement are herein
collectively referred to as the "Prospectus.")
Based upon the foregoing, we are of the opinion that:
(a) The Registration Statement has become effective under the
Securities Act of 1933, as amended (the "Act"), and, to the best of our
knowledge and information, no proceedings for a stop order have been
instituted or are threatened under Section 8(d) of the Act.
(b) The Registration Statement as of its effective date and the
Prospectus as of the date of the Prospectus Supplement, other than the
numerical, financial and statistical data contained therein, as to which we
express no opinion, comply as to form in all material respects with the
requirements of the Act and the rules thereunder.
(c) The Underwriting Agreement has been duly and validly authorized,
executed and delivered by the Company.
(d) The Trust Agreement has been duly and validly authorized,
executed and delivered by the Company and, assuming that it has been duly
and validly authorized, executed and delivered by the other parties
thereto, constitutes a valid, legal and binding agreement of the Company,
enforceable against the Company in accordance with its terms subject to
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and, as to enforceability, to general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(e) The Certificates, assuming that they have been duly and validly
authorized, executed and issued by the Trustee, will, when authenticated as
specified in the Trust Agreement and delivered to the Underwriter pursuant
to the Underwriting Agreement, be entitled to the benefits of the Trust
Agreement.
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(f) Trust Fund is not required to be registered under the Investment
Company Act of 1940, as amended.
We have endeavored to see that the Registration Statement and the
Prospectus comply with the Act and the rules and regulations of the Securities
and Exchange Commission thereunder relating to registration statements on Form
S-3 and related prospectuses, but we cannot, of course, make any representation
to you as to the accuracy or completeness of statements of fact contained in the
Registration Statement or Prospectus. Nothing, however, has come to our
attention that would lead us to believe that the Registration Statement at the
time it became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus as of the date
of the Prospectus Supplement and at the date hereof contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (other than the numerical, financial
and statistical data contained in the Registration Statement or the Prospectus,
as to which we express no opinion).
This opinion is for your benefit only and is not to be relied upon by any
other person.
Respectfully submitted,
Xxxxxxx and Xxxxxx
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Exhibit E
Underwriter Information
The text set forth in the Prospectus Supplement under the heading "Plan of
Distribution" and in the second paragraph therein.
