Exhibit 99.1.3
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Dated:
EMPIRE STATE MUNICIPAL EXEMPT TRUST
Guaranteed Series 162 (the "Trust")
GLICKENHAUS & Co.
LEBENTHAL & CO., INC.
c/o GLICKENHAUS & CO.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx
AGREEMENT AMONG UNDERWRITERS
Participation
Units
Gentlemen:
We hereby agree with you and the other Underwriters listed in Schedule A
hereto, severally (the Underwriters") with respect to the underwriting by us of
Units, subject to adjustment as provided in Section 1 (the "Units"), of
fractional undivided interests in the above unit investment trust (the "Trust")
to be created by a Trust Agreement (the "Trust Agreement"), a copy of which is
available to us upon request, under which you will act as Depositors, The Bank
of New York will act as Trustee (the "Trustee"), and Interactive Data
Corporation will act as Evaluator (the "Evaluator"). The Units shall be
represented by the certificates of ownership (the "Certificates") to be received
in exchange for the bonds (or contracts for the purchase thereof, and Units, if
any, of previously-issued series of Empire State Municipal Exempt Trust (the
"Bonds") to be acquired hereunder upon the deposit of such Bonds in the Trust
(the "Deposit Date").
We authorize Glickenhaus & Co. ("Glickenhaus"), acting as Representative
of the Underwriters and on our behalf, to take all such action and execute and
deliver all such agreements, consents and documents as it in its discretion may
deem necessary or advisable in order to carry out the provisions of this
Agreement and of the Trust Agreement and the sale and distribution of the Units.
We agree to execute such powers of attorney evidencing the powers granted to
Glickenhaus under this Agreement or any other agreements, consents and documents
upon Glickenhaus' request in such form and at such times as Glickenhaus deems
appropriate and advisable.
1. UNDERWRITER COMMITMENT.(1) We hereby commit on the terms and
conditions of this Agreement to purchase and pay for the number of Units set
forth opposite our name in Schedule A ("Underwriter Commitment"). Except for the
right granted to Glickenhaus pursuant to this Section to decrease our
Underwriter Commitment, our Underwriter Commitment may be increased or decreased
only by a written and signed agreement between us and Glickenhaus at any time
prior to the Deposit Date.
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1 In determining the Public Offering Price of Units for some series of Empire
State Municipal Exempt Trust, there is included a sales charge which may be
calculated on the basis of a graduated scale. In the event that such a
graduated scale is used for this series, the phrase "Public Offering Price"
as used in this Agreement shall be deemed to be the Public Offering Price
applicable to sales of fewer than 250 Units.
Our percentage interest ("Underwriter Percentage") and the percentage
interest of each Underwriter in the total Units to be offered in this series
shall be as expressed by the following ratio:
Underwriter Commitment = Underwriter Percentage
--------------------------
Total Units
The final determination of the respective Underwriter Percentage of each
Underwriter shall be made by Glickenhaus as of the Deposit Date.
Glickenhaus is authorized to increase or decrease the number of total
Units (and, correspondingly, the amount of Bonds) to be offered by a maximum of
50% if Glickenhaus shall deem it advisable and practicable to do so. In the
event Glickenhaus shall elect to decrease the number of Units hereunder,
Glickenhaus shall have the right but not the obligation to decrease our
Underwriter Commitment proportionately by notifying us of such election by
telephone and promptly confirming by telegraph or writing.
Glickenhaus is authorized to amend Schedule A to add additional
Underwriter(s) as Glickenhaus deems advisable in which case such Underwriter(s)
shall be deemed to have been parties to this Agreement as of the date of its
execution between us. Any deletion of Underwriter(s) from Schedule A by
Glickenhaus to reflect their withdrawal from this underwriting participation
shall be subject to reservation of all our rights with respect to them conferred
in us by this Agreement.
2. BOND ACCUMULATION ACCOUNT. We authorize you as our agents and
attorneys-in-fact and as Depositors to purchase and accumulate Bonds for deposit
in the Trust. All profits and losses from such purchase, accumulation and
deposit of the Bonds in the Trust computed from the date a "Bond Accumulation
Account" is commenced, adjusted to reflect expenses and carrying charges, shall
be recorded in such Bond Accumulation Account. It is understood that the
acquisition of the Bonds shall be at cost to the Bond Accumulation Account.
Accordingly, if the aggregate cost of such Bonds to the Trust based on the
Evaluator's evaluation of the offering price of the Bonds on the Deposit Date
shall be less than their aggregate acquisition cost to the Bond Accumulation
Account, any such loss, without limitation or restriction, shall be borne by you
alone as you shall provide. However, if the aggregate cost of such Bonds to the
Trust on the Deposit Date, as so determined, shall exceed the aggregate cost of
such Bonds to the Bond Accumulation Account plus any interest accruing on Bonds
not delivered at the Date of Deposit for the period commencing with the First
Settlement Date (as defined in the Prospectus) to the actual dates of delivery
of such undelivered Bonds, you agree to share with us to the extent of 50% of
our Underwriter Percentage any such excess, less an amount equal to $0.50 per
Unit committed for by us hereunder.
The Bonds shall consist of obligations of the type and quality described
in the Prospectus. We agree that you shall have no liability with respect to the
issue, form, validity, legality, enforceability, value, or tax status of or
title to the Bonds. We authorize Glickenhaus to execute on our behalf an
appropriate "investment letter" with respect to any Bonds purchased on a private
placement basis.
You are authorized to sell, exchange or otherwise dispose of Bonds from
the Bond Accumulation Account, including those Bonds purchased for the Bond
Accumulation Account but not deposited in the Trust, for such consideration as
you shall deem appropriate in your sole discretion. Only profits and losses from
such transactions with respect to the Bonds deposited in the Trust shall be
included in the final computation of profits and losses of the Bond Accumulation
Account.
The principal amount of the Bonds to be purchased shall not exceed
$1,000 per Unit.
We authorize you to purchase Bonds for the Bond Accumulation Account
from any seller, including any of you and any of the other Underwriters. Such
purchases shall be at the current market price then in effect (as reasonably
determined by you); provided, however, that if any Underwriter is a member of a
syndicate underwriting an original issue and is prohibited by price restrictions
of the syndicate from reselling bonds at less than a certain price, then the
purchase price of such Bonds to the Bond Accumulation Account shall be the
lowest price permitted
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by such restrictions. We shall furnish to you in writing any information and
copies of relevant documents regarding Bonds sold by us to the Bond Accumulation
Account which you deem necessary for inclusion in the Prospectus, including but
not limited to, the date on which such Bonds were acquired by us, the price of
acquisition, and, if the sale is made by us as a member of another underwriting
syndicate, our takedown retained as a member of such syndicate. If Bonds
purchased from us were initially acquired by us from the manager of a syndicate
of which we are or were a member or manager, we agree that there shall be
furnished to you in writing such estimates as to our participation in the profit
to the syndicate resulting from such purchase of Bonds as may be practicable
under the circumstances.
If at any time prior to the Deposit Date you shall determine that it is
impracticable or inadvisable to complete the acquisition of any or all Bonds
because of unfavorable market conditions or for other reasons adversely
affecting such acquisition or the offering of Units hereunder we authorize you
to sell from the Bond Accumulation Account the Bonds acquired prior to such
determination in such manner, at such times and at such prices as you shall deem
advisable, it being understood that any losses shall be borne by you and any
profits shall belong to you. As soon as practicable after all of the Bonds have
been sold pursuant to this paragraph, this Agreement shall be terminated and our
account hereunder settled in the manner stated in Section 11.
3. TRUST DEPOSIT. We authorize you, acting as our agent and on our
behalf, to deposit the Bonds in the Trust at such time after the acquisition of
the Bonds as you deem appropriate and to receive in exchange therefor for our
account Certificates representing our Underwriter Commitment in the Trust. We
authorize you to retain custody of the Certificates so acquired for our account
until delivered to us or sold for our accounts in accordance with this
Agreement.
You may deliver to us from time to time against payment, for carrying
purposes only, any Certificates which you are holding for sale for our account
but which have not been sold and paid for. We will redeliver to you against
payment any such Certificates so delivered to us for carrying purposes at such
times as you may demand.
4. REGISTRATION OF TRUST AND UNITS. We understand that (i) a
registration statement has been or will be filed with the Securities and
Exchange Commission (the "Commission") under the Investment Company Act of 1940,
as amended (the "1940 Act"), for the purpose of registering the Trust under the
1940 Act; and (ii) a registration statement on Form S-6, as amended, has been or
will be filed with the Commission under the Securities Act of 1933, as amended
(the "1933 Act"), to register the Units under the 1933 Act (the 1933 Act
registration statement as amended at the time it becomes effective is hereafter
referred to as the "Registration Statement"; and the term "Prospectus" as used
herein shall mean the prospectus included in the Registration Statement at the
time such Registration Statement becomes effective, except that if the
prospectus filed pursuant to Rule 497(b) under the 1933 Act differs from the
prospectus on file at the time such Registration Statement becomes effective,
the term Prospectus shall refer to the Rule 497(b) prospectus from and after the
time it is mailed or otherwise delivered to the Securities and Exchange
Commission for filing; and the date as of which such Registration Statement is
declared effective by the Commission is hereafter referred to as the "Effective
Date"); and (iii) the Trust also will take all necessary action under the Blue
Sky or securities laws of the states where it is proposed that the Units may be
offered and sold to qualify the Units for public offer and sale. We understand
that neither you nor any of the other Underwriters make any representations or
warranties or assume any responsibility with respect to the foregoing except
pursuant to the indemnity and contribution provisions hereof and except to the
extent required by express provision of the 1933 Act, the 1940 Act or other
applicable law.
We hereby authorize you to take all such action on our behalf related to
the above as you or your counsel shall deem necessary and advisable and to file
and approve on our behalf any and all amendments or supplements to said
registration statements and related filings as you or your counsel deem
necessary and advisable. We confirm that we agree to furnish you upon your
request with such information as will be required to ensure that such
registration statements, the Prospectus and all other related documents are
correct insofar as they relate to us.
5. PUBLIC OFFERING OF UNITS. A public offering of the Units is to
be made as soon after the Effective Date as in your judgment is practicable. You
shall notify us promptly by telephone when the public offering is to commence.
The public offering is to be made by means of the Prospectus and at the Public
Offering Price and in accordance with the terms and conditions set forth in the
Prospectus. We authorize Glickenhaus to
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change the terms and conditions of the public offering as Glickenhaus deems
advisable. You are authorized to make public advertisements of the offering on
such dates and in such form as you shall determine. We understand that we may
not make any public advertisements or distribute any promotional materials
relating to the Trust unless approved by Glickenhaus, as Agent for the
Depositors, in writing.
We also confirm that we will take reasonable steps to provide, or will
request you to provide, the preliminary prospectus prior to the Effective Date
and the Prospectus thereafter to any person making written request to us.
6. PURCHASE OF UNITS BY THE UNDERWRITERS. The sales charges and per
Unit sales concession ("Underwriter Concession") contemplated in connection with
this offering are those amounts set forth in the Prospectus. The Underwriter
Concession shall be retained by each Underwriter in accordance with the
following paragraph and any remaining balance shall be remitted after accounting
for expenses of the offering in accordance with Section 9. The remainder of the
sales charge will accrue to you.
We hereby agree with you and the several other Underwriters to purchase
from you on the Date of Deposit Certificates representing our Underwriter
Commitment on such date. The price to be paid for each such Unit shall be the
Public Offering Price (as defined in the Prospectus) less the Underwriter
Concession. Such payment is to be made by delivering to Glickenhaus within three
business days of the Date of Deposit ("First Settlement Date"), a certified or
bank cashier's check in New York Clearinghouse funds payable to the order of
Glickenhaus & Co. At the Date of Deposit, we will become the owner of such Units
and be entitled to the benefits (except for interest accruing thereon from the
Date of Deposit to the First Settlement Date) and subject to the risks inherent
therein.
Pursuant to a Selected Dealers Agreement, a copy of which is attached
hereto, we may sell to dealers ("Selected Dealers") part or all of the Units
delivered to us for direct sale at the then effective Public Offering Price,
plus accrued interest, less the dealers' concessions set forth in the
Prospectus.
We will offer to the public in conformity with the terms of the public
offering and at the then effective Public Offering Price described in the
Prospectus any of our Units not reserved by you for sale to retail accounts or
to Selected Dealers or sold by us directly to Selected Dealers as herein
authorized. When requested by us from time to time, you shall furnish to us the
then effective Public Offering Price.
7. SALES AUTHORITY. We authorize you to sell for our account to
retail accounts or to Selected Dealers (including one or more of the
Underwriters) such of our Units as you shall determine. Sales of Units to retail
accounts or to Selected Dealers shall be made for the account of any Underwriter
in such manner as you may deem appropriate. Our liability to take and pay for
Units under this Agreement shall be reduced to reflect any such sales of Units
for our account. You shall advise us promptly on the date of the public offering
as to our Units reserved by you for sale to retail accounts or to Selected
Dealers pursuant to this paragraph. You may advise us at any time thereafter
that any Units so reserved for sale for our account and not sold are no longer
so reserved and we shall then be responsible to take and pay for such Units as
if they had not been reserved.
You shall deliver to us for direct sale any Units held by you for our
account and not reserved for sale to retail accounts or to Selected Dealers,
and, with your consent, any Units held for our account which are so reserved
from time to time in accordance with our instructions, and upon payment to you
by us of the then effective Public Offering Price of such Units, plus accrued
interest, adjusted for the Underwriter Concession.
We authorize Glickenhaus to sell for our account to other Underwriters
such of our Units held by you for our account as Glickenhaus shall determine
which are not reserved by you for sale to retail accounts or to Selected Dealers
or, in accordance with the preceding paragraph, delivered to us for direct sales
provided that (i) such sales shall be made only to Underwriters to whom you
shall have delivered all of their Units not reserved for sale to retail accounts
or to Selected Dealers and (ii) such sales shall be made for the account of each
Underwriter for whose account you hold unreserved Units in such manner as you
may deem appropriate.
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You may, and any of the other Underwriters may, with your consent, make
purchases and sales of Units from or to any other Underwriter at the then
effective Public Offering Price, plus accrued interest, adjusted for the
Underwriter Concession.
You shall advise us as soon as practicable of any sales made by you for
our account pursuant to this Section 7.
From time to time prior to the termination of this Agreement, on
Glickenhaus' request, we will advise Glickenhaus of Units remaining unsold which
were delivered to us, and, on Glickenhaus' request, we shall deliver to you any
such Units remaining unsold for sale for our account to retail accounts or,
adjusted for the Underwriter Concession, to other Underwriters or Selected
Dealers, all in the manner and subject to the limitations stated above.
8. UNIT REPURCHASES. We understand and agree that you may, but are
not obligated to, repurchase any Units which are tendered or offered to you by
the holders thereof. If, during the term of this Agreement, you purchase or
contract to purchase for the account of any Underwriter, in the open market or
otherwise, Certificates for any Units which were retained by or released to us
for direct sale, or any Certificates which may have been issued in exchange
therefor, or if any such Units shall be tendered by us to the Trustee for
redemption, and which Units were therefore not effectively placed for investment
by us, we authorize you either to charge our account with an amount equal to the
concession to Selected Dealers with respect thereto, or to require us to
repurchase such Units at a price equal to the total cost of such purchase,
including accrued interest and commissions, if any, and transfer taxes on the
redelivery. Regardless of the amount paid on the repurchase of any such Units,
it is agreed that they may be resold by us only at the then effective Public
Offering Price plus accrued interest.
We agree that, until the termination of this Agreement, we will make no
purchase of the Units other than (i) purchases provided for in this Agreement,
(ii) purchases approved by Glickenhaus and (iii) purchases as a broker in
executing unsolicited orders.
9. EXPENSES. We authorize you to charge to our account all transfer
taxes paid on sales or transfers made for our account pursuant to this
Agreement. However, you shall bear the cost of all expenses (other than the
expenses referred to in the preceding sentence) incurred by you under this
Agreement or in connection with the establishment of the Trust and the
advertising, offering and sale of the Units, including the cost of preparation,
printing and execution of this Agreement, the Trust Agreement, the Certificates,
the registration statements and amendments thereto, all legal and accounting
fees of the Trustee and Depositors, the initial fees and expenses of the
Trustee, original issue and transfer taxes (other than the transfer taxes
referred to in the preceding sentence), fees of the Evaluator and any other
out-of-pocket expenses incurred in connection with the foregoing.
10. LEGAL OPINION AND ACCOUNTANT'S LETTER. After notification of the
effectiveness of the Registration Statement by the Commission, there shall be
furnished to each of us upon our request copies of all legal opinions and
accountants' reports which are delivered to the Depositors, the Trustee and the
Trust.
11. TERMINATION OF AGREEMENT. This Agreement shall terminate 30 days
after the date on which the public offering of the Units is concluded unless
sooner terminated by Glickenhaus, provided that Glickenhaus may extend this
Agreement for not more than four successive periods of 30 days each upon notice
to us and each of the other Underwriters.
Upon termination of this Agreement (other than pursuant to Section 2),
or prior thereto, at Glickenhaus' discretion, (i) you shall deliver to us
Certificates for any Units received by you for our account and not theretofore
delivered to us and Certificates for any Units held by you for our account and
(ii) after (a) crediting to our account payments made to you on account of Units
sold by you for our account or delivered by you to us, (b) charging to our
account the amounts authorized by Section 9 (c) crediting to our account our
share of any profit in the Bond Accumulation Account and (d) making such other
credits or charges to our account as are authorized by the provisions of this
Agreement, our account hereunder shall be settled and any amount due and owing
thereunder shall be paid by you or by us, as the case may be. The determination
by Glickenhaus as a Depositor and Representative of the amount to be paid to or
by us in settlement of our account shall be final and conclusive.
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Notwithstanding any settlement on the termination of this Agreement, we
agree to pay our Underwriter Percentage share of any amount payable on account
of any claim, demand or liability which may be asserted against the
Underwriters, or any of them, based on the claim that the Underwriters
constitute an association, unincorporated business or other separate entity and
our Underwriter Percentage of any expenses incurred by you in defending against
any such claim, demand or liability. We also agree to pay any stamp taxes which
may be assessed and paid after such settlement on account of any Units received
or sold hereunder for our account.
Notwithstanding any termination of this Agreement, no sale of the Units
shall be made by us at any time except in conformity with the provisions of
Section 22(d) of the 1940 Act.
We agree that if, within ninety days from the Effective Date, either (i)
the net worth of the Trust which we agree to underwrite shall be reduced to less
than $2,000,000 or 20% of the aggregate principal amount of Bonds initially
deposited in such Trust, whichever is lower, or (ii) such Trust shall have
terminated, then we will refund, on demand and without deduction, all sales
charges to purchasers of Units from us or any Selected Dealer participating in
the distribution of our Units. We authorize you to charge our account for all
refunds of sales charges in respect to our Units.
12. INDEMNIFICATION AND CONTRIBUTION. We agree to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus as amended and supplemented, 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, in
each case to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon or in conformity with
information furnished to you by us for use in the preparation of the
Registration Statement or the Prospectus or any amendment or supplement thereto.
This indemnity agreement will be in addition to any liability which we may
otherwise have.
Each Underwriter agrees to pay upon request, as contribution, its
proportionate share, based upon the respective Underwriter Percentage of the
Underwriters, of any losses, claims, damages or liabilities, joint or several,
under the 1933 Act, the 1940 Act or otherwise, paid or incurred by an
Underwriter to any person other than an Underwriter (including amounts paid by
an Underwriter as contribution), arising out of or based upon (i) any untrue
statement or alleged untrue statement of any material fact furnished by an
Underwriter and contained in the Registration Statement, any preliminary
prospectus, the Prospectus, any amendment or supplement thereto, any document
which may be incorporated by reference therein, or used in connection with the
sale of the Units, or arising out of or based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and (ii) any act or
omission to act or any alleged act or omission to act by an Underwriter, in
connection with any transaction contemplated by this Agreement or undertaken in
preparing for the purchase, sale and delivery of the Units; and each Underwriter
will pay such proportionate share of any legal or other expenses reasonably
incurred by an Underwriter or with its consent, in connection with investigating
or defending any such loss, claim, damage, or liability or any action in respect
thereof.
In case any action shall be brought against any Underwriter or any
person controlling such Underwriter based upon the Registration Statement, any
preliminary prospectus or the Prospectus or any amendment or supplement thereto
and in respect of which indemnity or contribution may be sought against any
Underwriter, such Underwriter shall promptly notify you in writing and you shall
assume the defense thereof, including the employment of counsel and the payment
of all expenses. Any such Underwriter or any such controlling person shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless the employment of
such counsel has been specifically authorized by us in writing. We shall not be
liable for any settlement of any such action effected without our consent, but
if settled with our consent or if there be a final judgment for the plaintiff in
any such action, we agree to indemnify and hold harmless any such Underwriter
and any such controlling person from and against any loss and liability by
reason of such settlement or judgment or to pay as contribution our share of
such loss or liability as provided in the preceding paragraph.
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The indemnity and contribution provisions contained in this Section 12
shall remain operative and in full force and effect regardless of (i) the
termination of this Agreement, and (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter.
13. SUBSTITUTION. Until the termination of this Agreement, we
authorize Glickenhaus to arrange for the substitution hereunder of other
persons, who may include you and us, for all or any part of the commitment of
any non-defaulting Underwriter with the consent of such Underwriter, and for all
or any part of the commitment of any defaulting Underwriter without his consent,
upon such terms and conditions as Glickenhaus may deem advisable, provided that
such substitution shall not in any way affect the liability of any defaulting
Underwriter to the other Underwriters for damages from such default, nor relieve
any Underwriter of any obligation under this Agreement. The expenses chargeable
to the account of any defaulting Underwriter and not paid for by it or by the
person substituted for such Underwriter and any additional losses or expenses
arising from such default shall be considered to be expenses of the Underwriting
account and shall be charged against the accounts of the non-defaulting
Underwriters in proportion to their respective Underwriter Percentages.
In the event that any of you shall for any reason cease to act as
Depositors of the Trust prior to the termination of the Trust Agreement, we
hereby authorize the remaining Depositor(s) and Trustee to select a substitute
Depositor as provided in the Trust Agreement.
14. MISCELLANEOUS. Default by any one or more of the other
Underwriters in respect of their several obligations under this Agreement shall
not release us from any of our obligations hereunder.
You represent to us that you are members in good standing of the
National Association of Securities Dealers, Inc. We represent to you that we are
members in good standing of said Association or, if we are not such a member,
that we are a foreign dealer not eligible for membership in said Association,
and we hereby agree not to reoffer, resell, or deliver Units in the United
States, its territories or its possessions or to persons who we have reason to
believe are citizens thereof or residents therein.
Nothing herein contained constitutes us partners with you or with the
other Underwriters and the obligations of ourselves and of each of the other
Underwriters are several and not joint.
Nothing herein contained shall be deemed to protect or purport to
protect any person against any liability to the Trust or the Certificateholders
to which such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of the duties of
such person, or by reason of such person's reckless disregard of such person's
obligations and duties under this Agreement.
Notices hereunder shall be deemed to have been duly given if telephoned
and then promptly mailed or telegraphed to us at our address set forth in the
Underwriters' Questionnaire which we have furnished to Glickenhaus at its
address set forth at the head of this Agreement.
The headings contained in this Agreement are for reference purposes only
and shall not affect its meaning or interpretation.
This Agreement shall be construed in accordance with the laws of the
State of New York.
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This Agreement is being executed by us and delivered to you. Upon your
confirmation hereof and of agreements in identical form with each of the other
Underwriters, this Agreement shall constitute a valid agreement between us.
Very truly yours,
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By:
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Underwriter
Confirmed as of the date set forth
on page 1 of this Agreement.
GLICKENHAUS & CO.
LEBENTHAL & CO., INC.
By: Glickenhaus & Co.
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SCHEDULE A
Underwriter Participation
Underwriter
Name and Address Underwriter Commitment Percentage
---------------- ---------------------- -----------
Glickenhaus & Co. [Pending delivery of the definitive Schedule
0 Xxxx 00xx Xxxxxx A pursuant to Section 1 hereof, the
Xxx Xxxx, Xxx Xxxx 00000 Depositors' Underwriter Commitment (and
Underwriter Percentage) shall be the number
of Units which have not been committed for by
other Underwriters who have become parties to
this Agreement.]
Lebenthal & Co., Inc.
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0
XXXXXX XXXXX XXXXXXXXX XXXXXX TRUST
Guaranteed Series 162
SELECTED DEALERS AGREEMENT
Dated:
Gentlemen:
(the "Underwriter") has entered into an agreement (the
"Agreement Among Underwriters") with the co-sponsors (the "Co-Sponsors") of
Empire State Municipal Exempt Trust, Guaranteed Series 162 (the "Trust")
pursuant to which it acts as an Underwriter for the sale of Units (the "Units")
of the Trust and as such has a limited right to distribute Units of the Trust
for resale. The Trust is a unit investment trust registered under the Investment
Company Act of 1940, as amended, and the Units being offered to the public are
registered under the Securities Act of 1933, as amended. Upon request to us,
you, as a Selected Dealer, may receive a copy of the Agreement Among
Underwriters, certain provisions of which are referred to herein. The term
Prospectus as used herein shall mean the prospectus included in the registration
statement, as amended, on Form S-6 under the Securities Act of 1933 relating to
the Trust on file with the Securities and Exchange Commission at the time such
registration statement, as amended, becomes effective, except that if the
prospectus filed pursuant to Rule 497(b) under the Securities Act of 1933
differs from the prospectus on file at the time such registration statement, as
amended, becomes effective, the term Prospectus shall refer to the Rule 497(b)
prospectus from and after the time it is mailed or otherwise delivered to the
Securities and Exchange Commission for filing. As principal, we offer to sell to
you, as a Selected Dealer, Units of the Trust upon the following terms and
conditions:
1. In all sales of the Units to the public you shall act as dealer
for your own account, and in no transaction shall you have any authority to act
as agent for the Trust, the Co-Sponsors, or for us, nor shall you have any
authority to act as agent for the Trust, the Co-Sponsors, for us or for any
other Selected Dealer.
2. Orders received from you will be accepted through us only at the
Public Offering Price applicable to each order, as set forth in the Prospectus.
The procedure relating to the handling of orders shall be subject to Section 5
hereof and instructions which we or the Co-Sponsors shall forward from time to
time to you. All orders are subject to acceptance or rejection by Glickenhaus &
Co. ("Glickenhaus"), as agent for the Co-Sponsors, in its sole discretion. The
minimum initial and subsequent purchase requirements, if any, are set forth in
the Prospectus.
3. The sales charges for sales of the Units to the public, computed
as percentages of the Public Offering Price and the amount invested, are set
forth in the Prospectus. These sales charges will apply on all purchases at any
one time by the same purchaser of Units of the Trust in the amounts stated.
Units held in the name of the spouse of the purchaser or in the name of a child,
under 21 years of age, of the purchaser are deemed for the purposes hereof to be
registered in the name of the purchaser. The graduated sales charges are also
applicable to a trustee or other fiduciary purchasing securities for a single
trust estate or single fiduciary account.
The concession paid to Selected Dealers (the "Selected Dealer
Concession") shall be an amount of $35 per Unit on sales of fewer than 250 Units
or such other amount as set forth in the Prospectus but in no event shall such
concession be in excess of the sales charge relating to the purchase of Units.
You may reallow to other dealers who are members in good standing of the
National Association of Securities Dealers, Inc. a concession not in excess of
the Selected Dealer Concession, provided such dealers agree to abide by the
terms of this Agreement.
4. You shall not place orders for any Units unless you have already
received purchase orders for such Units at the applicable public offering prices
and subject to the terms hereof. You agree that you will not offer or sell
any Units except under circumstances that will result in compliance with the
applicable Federal and state securities laws and that in connection with sales
and offers to sell Units you will furnish to each person to whom any such sale
or offer is made a copy of the Prospectus and will not furnish to any person any
information relating to the Units which is inconsistent in any respect with the
information contained in the Prospectus or cause any advertisement to be
published in any newspaper or posted in any public place without the express
written consent of Glickenhaus. as agent for the Co-Sponsors.
5. The Co-Sponsors will consider any order entered by authorized
personnel from the Selected Dealer during business hours (8:30 A.M. to 5:00
P.M.) good and non-cancellable orders. Any orders will be entered as received,
less the Selected Dealer Concession.
6. No person is authorized to make any representations concerning
the Units except those contained in the Prospectus and in such printed
information subsequently issued by the Co-Sponsors or the Trust as information
supplemental to such Prospectus. In purchasing Units from us, you shall rely
solely on the representations set forth in the Prospectus.
7. You agree to deliver to each of the purchasers making purchases
from you a copy of the Prospectus at or prior to the time of offering or sale,
and you agree thereafter to deliver to such purchasers copies of the annual and
interim reports of the Trust. Additional copies of the Prospectus and annual and
interim reports of the Trust will be supplied to you in reasonable quantities
upon request.
8. The Co-Sponsors reserve the right in their discretion, without
notice, to suspend sales or withdraw the offering of Units entirely. Each party
hereto has the right to cancel this Agreement upon written notice to the other
party.
The Co-Sponsors shall have full authority to take such action as they
may deem advisable in respect of all matters pertaining to the offering of the
Units. The Co-Sponsors shall be under no liability to you or the Underwriters
except for failure to perform obligations expressly assumed herein and in the
Agreement Among Underwriters. Nothing contained in this Section 8 is intended to
operate as, nor shall the provisions of this Section 8 in any way whatsoever
constitute, a waiver by you of compliance with any provisions of the Securities
Act of 1933, as amended, of the rules and regulations of the Securities and
Exchange Commission issued thereunder, or of any other applicable Federal or
state regulations.
9. You represent that you are a member in good standing of the
National Association of Securities Dealers, Inc. and, with respect to any sales
of the Units in the United States, we both hereby agree to abide by the Rules of
Fair Practice of such Association and by the terms of this Agreement.
10. Upon application to the Co-Sponsors, we will inform you as to
the states in which we believe the Units have been qualified for sale under, or
are exempt from the requirements of, the respective securities laws of such
states, but neither we nor the Co-Sponsors assume any responsibility or
obligation as to your right to sell Units in any jurisdiction.
11. All notices and communications to us should be sent to:
attention: . All notices and communications to you shall be
given if mailed or telegraphed to you at the address specified hereinabove.
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Please confirm your purchase and your acceptance of the terms of this
Agreement by signing and returning to us at
the enclosed duplicate of this letter.
------------------------------
Name of Underwriter
By:
---------------------------
Title
------------------------------
Name of Selected Dealer
By:
---------------------------
Title
0
XXXXXX XXXXX XXXXXXXXX XXXXXX TRUST, GUARANTEED SERIES
GLICKENHAUS & CO.
MEMBER NEW YORK STOCK EXCHANGE
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
(000) 000-0000
Unit Trust Department
- FOR DEALER USE ONLY -
RE: EMPIRE STATE MUNICIPAL EXEMPT TRUST GTD 162
Gentlemen:
In order to furnish Blue Sky sales reports to the regulatory authorities
of the States wherein Units of the Trust were sold, Glickenhaus & Co., as Agent
for the Sponsors of the Trust, requests that you provide to the Undersigned the
following information regarding your Underwriter Commitment of Units of the
Trust (and any takedowns of additional Units of the Trust):
Company Name:
NUMBER OF UNITS SOLD STATE(S) WHERE UNITS SOLD
-------------------- -------------------------
to Corporations, Partnerships,
Sole Proprietorships and to
Individuals
This information is taken from official and unofficial sources we believe to be
reliable, but cannot be guaranteed as to completeness or accuracy.
Please complete and return one executed copy of the Questionnaire to
Glickenhaus & Co. at the address stated below. Make a copy for your files.
UNDERWRITERS' QUESTIONNAIRE
EMPIRE STATE MUNICIPAL EXEMPT TRUST
GLICKENHAUS & CO.
LEBENTHAL & CO., INC.
c/o GLICKENHAUS & CO.
0 Xxxx 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Dear Sirs:
In connection with the proposed public offering of Units of fractional
undivided interest (the "Units") in The Empire State Municipal Exempt Trust
Guaranteed Series 162 (the "Trust") and for use in any registration statement or
prospectus relating to such Units, the undersigned, as a proposed underwriter,
advises you as follows:
Our exact name as it should appear in the prospectus and address
(including zip code) are as follows:
We are a (check one) |_| Corporation |_| Partnership |_| Sole
Proprietorship organized or existing under the laws of the State of
We are a member in good standing of the National Association of
Securities Dealers, Inc., and are registered with the Securities and
Exchange Commission as a broker or dealer pursuant to Section 15(b) of
the Securities Exchange Act of 1934.
We represent that our participation in the offering of the Units
will not place us in violation of Rule 15c3-1 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934 or the
rules of any securities exchange of which we are a member.
Except as indicated below, other than as may be stated in the
registration statement under the Securities Act of 1933 relating to the
Units (the "Registration Statement") or in any prospectus filed as part
thereof, or any registration statement relating to the Trust under the
Investment Company Act of 1940, or the Agreement Among Underwriters,
(a) neither we nor any "affiliated person", as defined In
Section 2(a) (3) of the Investment Company Act of 1940, have received,
nor do we know of any arrangement whereby we or any such person will
receive, any profits or other benefits through the sale or purchase of
the Units or interests therein, or the deposited bonds or interests
herein;
(b) we do not know of any arrangement to limit or restrict the
sale of the Units for the period of distribution, to stabilize the
market for the Units or the deposited bonds, for withholding
commissions, or otherwise to hold each Underwriter or dealer responsible
for the distribution of its participation, nor do we know of any current
agreements or arrangements with dealers, agents or salesmen with respect
to commissions, discounts, overriding commissions, territories,
franchises and the like with respect to the offering of the Units; and
(c) we have not received, nor do we know of any arrangement
whereby we are to receive any fees from the sale of the Units or from
any other functions to be performed by us in connection therewith.
We have never acted in any capacity with respect to any investment
company or companies other than the Trust except to sell securities of other
investment companies as a member of underwriting groups or selling groups or as
agents of such companies, to execute orders for the purchase and sale of
securities of such companies, or to sell securities to or purchase securities
from any such companies in our capacity as a broker or dealer in securities.
[State exceptions if any]
We represent that we have no knowledge of any false or misleading
statements in or omissions from the Registration Statement and that, in
accordance with the next paragraph, we will advise Glickenhaus & Co. if we
become aware of any such statements or omissions in the Registration Statement.
We represent and warrant that the foregoing information is correct to the best
of our knowledge, information and belief.
We will notify you immediately in the event of any development before
the date of completion of the public offering of the Units which makes untrue or
incomplete any of the above statements.
We will keep an accurate record of the names and addresses of all
persons to whom we give copies of the Registration Statement or any amendments
thereto, or of any preliminary or final prospectus relating to the Units and,
when furnished with copies of any subsequent amendment or supplement to the
Registration Statement or any prospectus we will promptly forward copies to such
persons.
Very truly yours,
---------------------------------------
(Name of Underwriter--Please Print)
By:
------------------------------------
(Signature of Officer or Partner)
Title:
---------------------------------
Date:
----------------------------------
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