EXHIBIT 1.01
Select Asset Inc.
[NAME] Trust Certificates,
[_____]-Backed Series 200[_]-[_]
[DATE]
UNDERWRITING AGREEMENT
Select Asset Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We (the "Underwriter"), acting on our own behalf and as
representative (the "Representative") of the underwriters named in Schedule I
hereto, understand that Select Asset Inc., a Delaware corporation (the
"Depositor"), proposes to form a trust (the "Trust"), which will issue and sell
its [NAME] Trust Certificates, [______]-Backed Series 200[_]-[_] (the
"Certificates"). The primary assets (the "Primary Assets") of the Trust will be
(i) at least $[______] aggregate principal amount of [___________] , issued by
[_________] and (ii) [any other assets specified in the Trust Agreement]. The
Certificates will be issued by the Trust, pursuant to a Standard Terms for Trust
Agreements, dated as [_________], between the Depositor and [__________], as
trustee (the "Trustee"), as supplemented by a Series Supplement, dated as of
[_______] (the "Series Supplement" and, together with the Standard Terms, the
"Trust Agreement"). The number of Certificates to be purchased by each
underwriter is set forth below. The Certificates shall have the following terms:
Number of Certificate Final Scheduled
Designation Certificates Interest Rate Distribution Date
----------- ------------ -------------- -----------------
Certificates [_____]1 [_______]1 [_______]
This Agreement relates to 100% of the Certificates (the "Offered
Certificates"). The distribution of the Offered Certificates will be effected by
us at a price equal to 100% of the par amount thereof. We may effect such
transactions by selling the Offered Certificates to or through dealers, and such
dealers may receive from us, for whom they act as agent, compensation in the
form of underwriting discounts, concessions or commissions.
Subject to the terms and conditions set forth or incorporated by
reference herein, and in reliance upon the representations and warranties set
forth in the document entitled "Select Asset Inc. -- [NAME] Trust Certificates
-- Underwriting Agreement Basic Provisions," a copy of
-----------------
(1) The Certificateholders will be entitled to receive, on [__] and [__] of each
year, commencing on [__]and ending on the Final Scheduled Distribution Date,
interest distributions at a rate of [__]% per annum on the outstanding principal
amount of the Certificates. Each Certificate will have a par amount of $[__].
which is attached hereto (the "Basic Provisions"), we will offer the Offered
Certificates to the public at a price equal to 100% of the par amount thereof.
We will pay for the Offered Certificates upon delivery of such
Certificates at our offices, at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at
10:00 A.M. (New York City time) on [__________], or at such other time and place
as we shall mutually agree (the "Closing Date"). The purchase price shall equal
[__]% of the par amount of the Offered Certificates.
All of the provisions contained in the Basic Provisions are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Underwriting Agreement to the same extent as if such provisions had been
set forth in full herein. Unless otherwise defined herein, terms defined in the
Basic Provisions and the Trust Agreement are used herein as therein defined.
Please accept this offer by having an authorized officer sign a copy
of this Underwriting Agreement in the space set forth below and returning the
signed copy, or by sending a written acceptance in the following form, to us at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000:
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"We hereby accept your offer, set forth in the Underwriting
Agreement, dated [________], to purchase the Offered Certificates on the terms
set forth therein."
Very truly yours,
XXXXXX BROTHERS INC.,
for itself and as Representative of the
underwriters named in Schedule I hereto
By: ___________________________________
Name:
Title:
Agreed and Accepted:
SELECT ASSET INC.
By: ___________________________________
Name:
Title:
EXHIBIT 1.01
Select Asset Inc.
[NAME] Trust Certificates
UNDERWRITING AGREEMENT BASIC PROVISIONS
The basic provisions set forth herein are intended to be
incorporated by reference in an underwriting agreement (an "Underwriting
Agreement") of the type referred to in Paragraph 2 hereof. With respect to any
particular Underwriting Agreement, the Underwriting Agreement, together with the
provisions hereof incorporated therein by reference, is herein referred to as
this "Agreement." Terms defined in the Underwriting Agreement and the Trust
Agreement (as hereinafter defined) are used herein as therein defined.
Select Asset Inc., a Delaware corporation (the "Depositor"),
proposes to form a trust (the "Trust"), which will issue and sell a series (a
"Series") of its Trust Certificates registered under the registration statement
referred to in Paragraph 1(a) hereof (the "Certificates"). The Certificates will
evidence a proportionate undivided beneficial ownership interest in certain
distributions of the Trust. The Certificates will have the designations,
denominations, interest rates, distribution dates, final scheduled distribution
dates and selling prices set forth in the Underwriting Agreement.
1. The Depositor represents, warrants and agrees that:
(a) A registration statement on Form S-3 (No. 333-[_____]) with
respect to the Offered Certificates has been prepared by the Depositor and filed
with the Securities and Exchange Commission (the "Commission"), and complies as
to form in all material respects with the requirements of the Securities Act of
1933, as amended (the "Act"), and the rules and regulations (the "Rules and
Regulations") of the Commission thereunder, including Rule 415, and has become
effective under the Act. As used in this Agreement, (i) "Preliminary Prospectus"
means each prospectus included in that registration statement, or amendments or
supplements thereof, before the registration statement became effective under
the Act, including any prospectus filed with the Commission pursuant to Rule
424(a) of the Rules and Regulations; (ii) "Registration Statement" means that
registration statement and all exhibits thereto, as amended or supplemented to
the date of this Agreement; (iii) "Basic Prospectus" means the applicable
prospectus included in the Registration Statement; and (iv) "Prospectus" means
the Basic Prospectus, together with any prospectus supplement specifically
relating to the Offered Certificates (a "Prospectus Supplement"), as filed with,
or mailed for filing to, the Commission pursuant to paragraphs (b) or (c) of
Rule 424 of the Rules and Regulations;
(b) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective and on the date of this Agreement,
complied, and (in the case of any amendment or supplement to any such document
filed with the Commission after the date as of which this representation is
being made) will comply, as to form in all material respects with the
requirements of the Act, the Rules and Regulations; and the Registration
Statement and the Prospectus do not, and (in the case of any amendment or
supplement to any such document filed with the Commission after the date as of
which this representation is being
made) will not, contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided however, that the Depositor makes no
representation or warranty as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in conformity with
written information furnished to the Depositor by the Underwriter specifically
for inclusion therein;
(c) The Depositor is not in violation of its corporate charter or
by-laws or in default under any agreement, indenture or instrument the effect of
which violation or default would be material to the Depositor; the execution,
delivery and performance of this Agreement and the Trust Agreement and the
consummation of the transactions contemplated therein have been, and at the
Closing Date (as defined in Paragraph 4 hereof) the Trust Agreement pursuant to
which the Offered Certificates will be issued, and other operative documents
will have been authorized by all necessary corporate action and compliance by
the Depositor with the provisions of this Agreement; the Offered Certificates
and the Trust Agreement will not conflict with, result in the creation or
imposition of any material lien, charge or encumbrance upon any of the assets of
the Depositor, pursuant to the terms of, or constitute a default under, any
material agreement, indenture or instrument, or result in a violation of the
corporate charter or by-laws of the Depositor or any order, rule or regulation
of any court or governmental agency having jurisdiction over the Depositor or
its properties; and, except as required by the Act, the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and applicable state securities laws,
no consent, authorization or order of, or filing or registration with, any court
or governmental agency is required for the execution, delivery and performance
of this Agreement and each of the Trust Agreement;
(d) Except as described in the Registration Statement and the
Prospectus, there has not been any material adverse change or any adverse
development that materially affects, the business, properties, financial
condition or results of operations of the Depositor from the dates as of which
information is given in the Registration Statement and the Prospectus;
(e) The Trust Agreement has been duly and validly authorized,
executed and delivered by the Depositor and is a valid and legally binding
obligation of the Depositor enforceable against the Depositor in accordance with
each of its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting the enforcement of creditors
rights generally or by general principles of equity; and on the Closing Date,
(i) the Offered Certificates will have been validly authorized and, upon payment
therefor as provided in this Agreement, will be validly issued and outstanding,
and will constitute legally binding obligations of the Depositor entitled to the
benefits of the Trust Agreement relating to the Offered Certificates and (ii)
the Offered Certificates, the Trust Agreement and other operative documents will
conform to the descriptions thereof contained in the Prospectus;
(f) The Depositor has been duly incorporated, is validly existing
and in good standing under the laws of the State of Delaware and is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which its ownership of property or the conduct of its
business requires such qualification and has all corporate power and authority
necessary to own or hold its properties and to conduct the business in which it
is
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engaged, except such jurisdictions, if any, in which the failure to be so
qualified will not have a material adverse effect on its business or properties;
(g) Except as described in the Prospectus, there is no litigation
or governmental proceeding pending or, to the knowledge of the Depositor,
threatened against the Depositor that might result in any material adverse
change in the financial condition, results of operation, business or prospects
of the Depositor or that is required to be disclosed in the Registration
Statement;
(h) There are no contracts or other documents that are required
to be filed as exhibits to the Registration Statement by the Act or by the Rules
and that have not been filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and Regulations, or
that are required to be summarized in the Prospectus that are not so summarized;
provided, however, that the Depositor makes no representation or warranty with
respect to any contract or document, except this Agreement, to which any
Underwriter is a party;
(i) The Trust is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended, or under the control
of an investment company;
(j) At the Closing Date, the Offered Certificates will have been
rated by a nationally recognized statistical rating agency (as such term is used
in Rule 15c3-1 under the Exchange Act) in the certificate rating categories as
described in the Prospectus relating to the Offered Certificates.
(k) This Agreement has been duly authorized, executed and
delivered by the Depositor and is a valid and legally binding obligation of the
Depositor enforceable against the Depositor in accordance with each of its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency or other laws affecting the enforcement of creditors rights generally
or by general principles of equity;
(l) All approvals, authorizations, consents, orders or other
actions of any person, corporation or other organization, or of any court,
governmental agency or body or official (except with respect to the state
securities or Blue Sky laws of various jurisdictions), required in connection
with the valid authorization, issuance and sale of the Certificates pursuant to
this Agreement, and the Trust Agreement has been or will be taken or obtained on
or prior to the Closing Date specified in the Trust Agreement;
(m) At the applicable Closing Date, any assets included in the
related Trust will meet the criteria for selection described in the Prospectus;
(n) At the applicable Closing Date, the representations and warranties made by
the Depositor in the Trust Agreement will be true and correct;
(o) At the time of the execution and delivery of the Trust
Agreement, the Depositor will be the beneficial owner of the Primary Assets
being transferred to the Trustee pursuant thereto, free and clear of any lien or
other encumbrance, and will not have assigned to
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any person any of its right, title or interest in the Primary Assets or in the
Trust Agreement or the Offered Certificates being issued pursuant thereto; and
(p) At the time of the execution and delivery of the Trust
Agreement, the Depositor will have the power and authority to transfer the
Primary Assets to the Trust and to transfer the Offered Certificates to the
Underwriter and, upon execution and delivery to the Trustee of the Trust
Agreement and delivery to the Underwriter of the Offered Certificates, the
Primary Assets constituting a portion of the Trust will have been duly and
validly assigned to the Trust in accordance with the terms of the Trust
Agreement.
2. The obligation of the Underwriter to purchase, and the Trust to
sell, the Offered Certificates is subject to the execution and delivery of the
Underwriting Agreement, completed so as to specify the firm that will be the
Underwriter, the principal or notional amount, as applicable, of the Offered
Certificates to be purchased by the Underwriter, the purchase price to be paid
by the Underwriter for the Offered Certificates, the public offering price of
the Offered Certificates, certain terms thereof and the Underwriter's
compensation therefor and any terms of the Offered Certificates not already
specified in the Trust Agreement (including, but not limited to, designations,
denominations, interest rates and final scheduled distribution dates). The
Underwriting Agreement will specify any details of the terms of the offering of
Offered Certificates that, pursuant to the Rules and Regulations, should be
reflected in a post-effective amendment to the Registration Statement or a
Prospectus Supplement relating to the offering of the Offered Certificates.
3. The Trust shall not be obligated to deliver any of the Offered
Certificates except upon payment for all the Offered Certificates to be
purchased pursuant to this Agreement as hereinafter provided.
4. Payment for the Offered Certificates shall be made at the
location set forth in the Underwriting Agreement, by 11:00 A.M. New York City
time, on the fifth business day following the date of the Underwriting
Agreement, or at such other location, time and date as shall be agreed upon in
the Underwriting Agreement or otherwise. This date and time are sometimes
referred to as the "Closing Date." The Offered Certificates, in definitive form,
duly executed and authenticated, shall at the direction of the Underwriter be
delivered by the Depositor, for safekeeping, against delivery of a safekeeping
receipt, to the Underwriter at the offices of the Underwriter in New York, New
York, on the business day prior to the Closing Date, registered in such names
and denominations as the Underwriter shall request in writing at least four
business days prior to the Closing Date. Upon notice given to the Depositor at
least four business days prior to the Closing Date, the Depositor shall not
deliver the Offered Certificates to the Underwriter for safekeeping on the
business day prior to the Closing Date, but shall instead deliver the Offered
Certificates to the Underwriter on the Closing Date for the account of the
Underwriter against payment to or upon the order of the Depositor of the
purchase price in Federal Reserve or other immediately available funds. Such
Offered Certificates shall be made available for checking and packaging by the
Underwriter not less than two business days prior to the Closing Date at such
place in New York, New York, as the Underwriter and the Depositor may agree.
Time shall be of the essence, and delivery at the times and places specified
pursuant to this Agreement is a further condition of the obligation of the
Underwriter hereunder. Notwithstanding the foregoing, if the Certificates are to
be delivered through the
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facilities of The Depository Trust Company, the Certificates shall be registered
in the name of Cede & Co. and delivered pursuant to separate instructions from
the Underwriter to the Depositor.
5. The Depositor agrees:
(a) To furnish promptly to the Underwriter and to counsel for the
Underwriter one signed copy of the Registration Statement as originally filed
with the Commission, and each amendment or supplement thereto filed prior to the
date of the Underwriting Agreement or relating to or covering the Offered
Certificates, and a copy of each Prospectus filed with the Commission, including
all consents and exhibits filed therewith;
(b) To deliver promptly to the Underwriter such number of
conformed copies of the Registration Statement (excluding exhibits other than
this Agreement) and each Prospectus as the Underwriter may reasonably request;
(c) To file promptly with the Commission, during such period
following the date of the Underwriting Agreement in which any Prospectus is
required by law to be delivered, any amendment or supplement to the Registration
Statement or any Prospectus that may, in the judgment of the Depositor or the
Underwriter, be required by the Act or requested by the Commission and approved
by the Underwriter;
(d) Prior to filing with the Commission during the period
referred to in (c) above any amendment or supplement to the Registration
Statement or any Prospectus, to furnish a copy thereof to the Underwriter and to
counsel for the Underwriter, and the Depositor shall not file any such amendment
or supplement to which the Underwriter shall reasonably object;
(e) To advise the Underwriter promptly (i) when any
post-effective amendment to the Registration Statement relating to or covering
the Offered Certificates becomes effective, (ii) of any request or proposed
request by the Commission for an amendment or supplement to the Registration
Statement or to any Prospectus (insofar as the amendment or supplement relates
to or covers the Offered Certificates) or for any additional information, (iii)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or any order directed to any Prospectus or the
initiation or threat of any such stop order proceeding, (iv) of receipt by the
Depositor of any notification with respect to the suspension of the
qualification of the Offered Certificates for sale in any jurisdiction or the
initiation or threat of any Proceeding for that purpose and (v) of the happening
of any event that makes untrue any statement of a material fact made in the
Registration Statement or any Prospectus or that requires the making of a change
in the Registration Statement or any Prospectus in order to make any material
statement therein not misleading;
(f) If, during the period referred to in (c) above, the
Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the lifting of
that order at the earliest possible time;
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(g) To make generally available to the holders of the
Certificates (the "Certificateholders"), as soon as practicable, an earnings
statement conforming with requirements of Section 11(a) of the Act and Rule 158
thereunder;
(h) To endeavor to qualify the Offered Certificates for offer and
sale under the securities laws of such jurisdictions as the Underwriter may
reasonably request, provided, however, that this Paragraph 5(h) shall not
obligate the Depositor or the Trust to file any general consent to service of
process or to qualify to do business in any jurisdiction where they are now not
qualified or as dealers in securities in any jurisdiction in which they are not
so qualified;
(i) To pay or cause to be paid (i) the costs incident in the
preparation, printing and filing under the Act of the Registration Statement and
any amendments thereof and supplements and exhibits thereto, (ii) the costs of
distributing the Registration Statement as originally filed and each amendment
and post-effective amendment thereof (including exhibits), any Preliminary
Prospectus, each Prospectus and any amendment or supplement to the Prospectus as
provided in this Agreement; (iii) the costs of printing and distributing this
Agreement, the Trust Agreement and other operative documents; (iv) the costs of
filings, if any, with the National Association of Securities Dealers, Inc.; (v)
fees paid to any rating agency in connection with the rating of the Offered
Certificates; (vi) the fees and expenses of qualifying the Certificates under
the securities laws of the several jurisdiction as provided in Paragraph 5(h)
hereof and of preparing and printing, if so requested by the Underwriter, a
Preliminary Blue Sky Survey and Legal Investment Survey concerning the legality
of the Certificates, including the Offered Certificates, as an investment
(including fees and disbursements of counsel to the Underwriter in connection
therewith); and (vii) all other costs and expenses incident to the performance
of the Depositor's obligations under this Agreement; provided, however, that,
except as provided in Paragraph 9, the Underwriter shall pay their own costs and
expenses, including the fees and expenses of their counsel, any transfer taxes
on the Offered Certificates that they may sell and the expenses of advertising
any offering of the Offered Certificates made by the Underwriter;
(j) To file or cause the Trustee to file on behalf of the Trust,
on a timely basis, any documents and any amendments thereof as may be required
to be filed by it pursuant to the Exchange Act; and
(k) To cause the Trustee while the Certificates are outstanding
to:
(i) furnish to the Underwriter, as soon as available, copies of
all reports filed with the Commission and copies of each notice published
or mailed to holders of the Offered Certificates pursuant to the Trust
Agreement; and
(ii) furnish to the Underwriter, such other information with
respect to the Trust or its financial condition or results of operations,
as the Underwriter may reasonably request, including, but not limited to,
information necessary or appropriate to the maintenance of a secondary
market in the Offered Certificates.
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6. Indemnification.
(a) The Depositor shall indemnify and hold harmless the Underwriter
and each person, if any, who controls any Underwriter within the meaning of the
Act from and against any loss, claim, damage or liability, joint or several, and
any action in respect thereof, to which the Underwriter or controlling Person
may become subject, under the Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or any Prospectus or arises
out of, or is 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 shall reimburse the Underwriter and such controlling
person for any legal and other expenses reasonably incurred by the Underwriter
or controlling person in investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action; provided, however,
that the Depositor shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or any Prospectus
in reliance upon and in conformity with written information furnished to the
Depositor by the Underwriter specifically for inclusion therein; and provided
further that, as to any Preliminary Prospectus, this indemnity agreement shall
not inure to the benefit of any Underwriter or any person controlling any
Underwriter on account of any loss, claim, damage, liability or action arising
from the sale of Offered Certificates to any person by that Underwriter if that
Underwriter failed to send or give a copy of the Prospectus, as the same may be
amended or supplemented, to that person within the time required by the Act, and
the untrue statement or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact in such Preliminary Prospectus was
corrected in such Prospectus, unless such failure resulted from non-compliance
by the Depositor with Paragraph 5(b). The foregoing indemnity is in addition to
any liability that the Depositor may otherwise have to any Underwriter or any
person or entity controlling such Underwriter.
(b) The Underwriter shall indemnify and hold harmless the Depositor,
each of its directors, each of its officers who signed the Registration
Statement, and any person who controls the Depositor within the meaning of the
Act from and against any loss, claim, damage or liability, joint or several, and
any action in respect thereof, to which the Depositor or any such director,
officer or controlling person may become subject, under the Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or any
Prospectus, or arises out of, or is 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, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Depositor by the Underwriter specifically for inclusion
therein, and shall reimburse the Depositor for any legal and other expenses
reasonably incurred by the Depositor or any such director, officer or
controlling person defending or preparing to defend against any such loss,
claim, damage, liability or action. The foregoing indemnity agreement is in
addition to any liability that any Underwriter may otherwise have to the
Depositor or any of its directors, officers or controlling persons.
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(c) Promptly after receipt by an indemnified party under this
Paragraph of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this paragraph, notify the indemnifying party in
writing of the claim or commencement of that action, provided that the failure
to notify the indemnifying party shall not relieve it from any liability that it
may have to an indemnified party otherwise than under this Paragraph. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this paragraph for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof; provided that the Underwriter shall have the right to employ counsel to
represent the Underwriter, if (i) in the reasonable judgment of the Underwriter,
there may be legal defenses available to the Underwriter different from or in
addition to those available to the Depositor, or there is a conflict of interest
between the Underwriter, on one hand, and the Depositor, on the other, or (ii)
the Depositor shall fail to select counsel, and in such event the fees and
expenses of such separate counsel shall be paid by the Depositor. In no event
shall the Depositor be liable for the fees and expenses of more than one
separate firm of attorneys for the Underwriter and the controlling persons in
connection with any other action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
(d) If the indemnification provided for in this Paragraph 6 shall
for any reason be unavailable to an indemnified party under Paragraph 6(a) or
6(b) hereof in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Depositor on the
one hand and the Underwriter on the other from the offering of the Offered
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 Depositor on the one hand and the Underwriter on the other with
respect to the statements or omissions that resulted in such loss, claim, damage
or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Depositor on the
one hand and the Underwriter on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Offered Certificates (before deducting expenses) received by the
Depositor bear to the total underwriting discounts and commissions received by
the Underwriter with respect to such offering, in each case as set forth in the
table on the cover page of the Prospectus Supplement. The relative fault shall
be determined by reference to whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact relates
to information supplied by the Depositor or the Underwriter, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Depositor and the Underwriter
agree that it would not be just and equitable if contributions pursuant to this
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Paragraph 6(d) were to be determined by pro rata allocation (even if the
Underwriter were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Paragraph 6(d) shall be deemed to include, for
purposes of this Paragraph 6(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Paragraph 6(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered 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 paid or become liable to pay by
reason of any 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriter's
obligations to contribute as provided in this Paragraph 6(d) are several in
proportion to their respective underwriting obligations and not joint.
(e) The indemnity agreements contained in this Paragraph and the
representations, warranties and agreements of the Depositor in Paragraph 1 and
Paragraph 5 hereof, shall survive the delivery of the Offered Certificates, and
the provisions of this Paragraph and of Paragraph 5(j) shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
7. The obligations of the Underwriter under this Agreement may be
terminated by the Underwriter, in its absolute discretion by notice given to and
received by the Depositor prior to the delivery of and payment for the Offered
Certificates, if, during the period beginning on the date of this Agreement to
and including the Closing Date, (a) trading in securities generally on the New
York Stock Exchange, Inc. is suspended or minimum prices are established on that
Exchange, or (b) a banking moratorium is declared by Federal or New York State
authorities, or (c) the United States is or becomes engaged in hostilities that
result in the declaration of a national emergency, or (d) any rating of the
Offered Certificates shall be lowered by the nationally recognized statistical
rating agency (as such term is used in Rule 15c3-1 under the Exchange Act) that
initially rated the Certificates.
8. The obligations of the Underwriter under this Agreement with
respect to the Offered Certificates are subject to the accuracy, on the date of
this Agreement and on the Closing Date, of the representations and warranties of
the Depositor contained herein, to the performance by the Depositor of its
obligations hereunder, and to each of the following additional terms and
conditions applicable to the Offered Certificates:
(a) At or before the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued, and prior to
that time no stop order proceeding shall have been initiated or threatened by
the Commission; any request of the Commission for inclusion of additional
information in the Registration Statement or any Prospectus or otherwise shall
have been complied with; and after the date of this Agreement the Depositor
shall not have filed with the Commission any amendment or supplement to the
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Registration Statement or any Prospectus to which the Underwriter shall have
reasonably objected;
(b) The Underwriter shall not have discovered and disclosed to
the Depositor on or prior to the Closing Date that the Registration Statement or
any Prospectus contains an untrue statement of a fact that, in the opinion of
counsel to the Underwriter, is material or omits to state a fact that, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading;
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Offered
Certificates, the Trust Agreement, other operative documents and the form of the
Registration Statement, each Prospectus (other than financial statements and
other financial data) and all other legal matters relating to this Agreement and
the transactions contemplated hereby shall be reasonably satisfactory in all
respects to Cadwalader, Xxxxxxxxxx & Xxxx LLP, as counsel for the Underwriter,
and the Depositor shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters;
(d) Counsel to the Depositor shall have furnished to the
Underwriter their opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriter;
(e) Counsel to the Trustee shall have furnished to the
Underwriter their opinion, dated as of the applicable Closing Date, in form and
substance satisfactory to the Underwriter;
(f) The Underwriter shall have received such opinion or opinions,
dated the Closing Date, with respect to the incorporation of the Depositor, the
validity of the Registration Statement, the Prospectus and other related matters
as the Underwriter may require, and the Depositor shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass
upon such matters;
(g) The Underwriter shall have received a certificate or
certificates signed by such of the principal executive, financial and accounting
officers of the Depositor as the Underwriter may request, dated the applicable
Closing Date, in which such officers, to the best of their knowledge after
reasonable investigation, shall state that (i) the representations and
warranties of the Depositor in this Agreement are true and correct; (ii) the
Depositor has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing Date; (iii) no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are contemplated;
(iv) subsequent to the respective dates as of which information is given in the
Prospectus, and except as set forth or contemplated in the Prospectus, there has
not been any material adverse change in the general affairs, capitalization,
financial condition or results of operations of the Depositor; (v) except as
otherwise stated in the Prospectus, there are no material actions, suits or
proceedings pending before any court or governmental agency, authority or body
or, to their knowledge, threatened, which could have a material effect upon the
Depositor or upon the transactions contemplated by this Agreement; and (vi)
attached thereto are true and correct copies of a letter from the rating agency
or agencies rating the Certificates
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subject to this Agreement confirming that, unless otherwise specified in the
applicable Underwriting Agreement that the Certificates have been rated in the
same rating categories established by such agency or agencies as the rating of
the Underlying Securities and that such rating has not been lowered since the
date of such letter;
(h) If applicable, the Underwriter shall have received letters
dated the Closing Date from counsel rendering opinions to any nationally
recognized statistical rating organization rating the Certificates, to the
effect that the Underwriter may rely upon their opinion to such rating
organization, as if such opinion were rendered to the Underwriter;
(i) The Underwriter shall have received a certificate of the
Trustee, signed by one or more duly authorized officers of the Trustee, dated
the applicable Closing Date, as to the due acceptance of the Trust Agreement by
the Trustee and the due authorization and delivery of the Certificates by the
Trustee thereunder; and
(j) The Depositor will furnish the Underwriter with such
conformed copies of such opinions, certificates, letters and documents as the
Underwriter reasonably requests.
All opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance satisfactory to counsel for the
Underwriter.
9. If the sale of the Offered Certificates shall not be consummated
because any condition to the Underwriter's obligations set forth in Paragraph 8
hereof is not satisfied or because of any refusal, inability or failure on the
part of the Depositor to perform any agreement herein or comply with any
provision hereof other than by reason of default of the Underwriter, the
Depositor shall reimburse the Underwriter for the reasonable fees and expenses
of their counsel and for such other out-of-pocket expenses as shall have been
incurred in connection with this Agreement and the proposed purchase of the
Offered Certificates, and upon demand the Depositor shall pay the full amount
thereof to the Underwriter.
10. The Depositor shall be entitled to act and rely upon any
request, consent, notice or agreement by Xxxxxx Brothers Inc. as, or on behalf
of, the Underwriter. Any notice by the Depositor to the Underwriter shall be
sufficient if given in writing or by telegraph addressed to Xxxxxx Brothers
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and any notice by the
Underwriter to the Depositor shall be sufficient if given in writing or by
telegraph addressed to the Depositor at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of the Secretary.
11. This Agreement shall be binding upon the Underwriter, the
Depositor and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the indemnity agreement of the Underwriter contained in Paragraph 6 hereof shall
be deemed to be for the benefit of directors of the Depositor, officers of the
Depositor who have signed the Registration Statement and any person controlling
the Depositor. Nothing in this Agreement is intended or shall be construed to
give any person, other
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than the persons referred to in this Paragraph, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained
herein.
12. For purposes of this Agreement, "business day" means any day on
which the New York Stock Exchange, Inc. is open for trading.
13. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE
OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
14. This Agreement may be executed in one or more counterparts, and,
if executed in more than one counterpart, the executed counterparts shall
together constitute a single instrument.
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Schedule I
NUMBER OF CERTIFICATES
UNDERWRITER TO BE PURCHASED
---------------------------------------------------------------
Xxxxxx Brothers Inc. [_______]
---------------------------------------------------------------
[Other underwriters] [_______]
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Total [_______]
---------------------------------------------------------------
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