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Exhibit 1.1
CREDIT AND REPACKAGING VEHICLE CORPORATION
PUBLIC CREDIT AND REPACKAGED SECURITIES(SM) (PCARS)(SM)
TRUST CERTIFICATES
UNDERWRITING AGREEMENT
July -, 2001
Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
From time to time, Credit And Repackaging Vehicle Corporation, a
Delaware corporation (the "Depositor"), proposes to enter into one or more
Pricing Agreements (each, a "Pricing Agreement") in the form of Annex I hereto,
with such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to sell to the
firm or firms named in Schedule I to the applicable Pricing Agreement (such firm
or firms constituting the "Underwriters" with respect to such Pricing Agreement
and the trust certificates specified therein) certain trust certificates (the
"Certificates") issued by a series of Public Credit and Repackaged
Securities(SM) (PCARS)(SM) Trusts (each, a "Trust") pursuant to trust agreements
(each, a "Trust Agreement") between the Depositor and a trustee (the "Trustee"),
with respect to each Trust. The Certificates to be sold pursuant to any Pricing
Agreement will be specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Designated Certificates").
The terms and rights of any particular sale of Designated Certificates
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the Trust Agreement identified in such Pricing Agreement.
1. Particular sales of Designated Certificates may be made from time to
time to the Underwriters of such Certificates, for whom the firms designated as
representatives of the Underwriters of such Certificates in the Pricing
Agreement relating thereto will act as representatives (the "Representatives").
The term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or Underwriters who act
without any firm being designated as its or their representatives. This
Underwriting Agreement shall not be construed as an obligation of the Depositor
to sell any of the Certificates or as an obligation of any of the Underwriters
to purchase any of the Certificates. The obligation of the Depositor to sell any
of the Certificates and the obligation of any of the Underwriters to purchase
any of the Certificates shall be evidenced by the Pricing Agreement with respect
to the Designated Certificates specified therein. Each Pricing Agreement shall
specify the aggregate principal amount of such Designated Certificates, the
initial public offering price of such Designated Certificates, the purchase
price to the Underwriters
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of such Designated Certificates, the names of the Underwriters of such
Designated Certificates, the names of the Representatives of such Underwriters
and the principal amount of such Designated Certificates to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Certificates and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Trust Agreement and the registration
statement and prospectus with respect thereto) the terms of such Designated
Certificates. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Depositor represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333- )
(the "Initial Registration Statement") in respect of the Certificates
has been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
or to be delivered to the Representatives and, excluding exhibits to
the Initial Registration Statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore
been filed or transmitted for filing with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Act, each in the form heretofore delivered
to the Representatives); and no stop order suspending the effectiveness
of the Initial Registration Statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement, any post-effective amendment thereto and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
Initial Registration Statement at the time such part of the Initial
Registration Statement became effective but excluding Form T-1, each as
amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Certificates, in the form in which it has
most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being hereinafter
called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary
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Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment to the Initial Registration
Statement shall be deemed to refer to and include any annual report of
the Depositor filed pursuant to Sections 13(a) or 15(d) of the Exchange
Act after the effective date of the Initial Registration Statement that
is incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to
the applicable Designated Certificates in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
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; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Depositor by an Underwriter of
Designated Certificates through the Representatives expressly for use
in the Prospectus as amended or supplemented relating to such
Certificates;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an 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;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Depositor by an
Underwriter of Designated Certificates through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Certificates;
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material adverse change, or any development involving a
prospective material adverse change, in or affecting, as applicable,
the general affairs, management, financial position or results of
operations of the Depositor
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and its subsidiaries, or any Trust, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus;
(f) This Agreement has been, and at the Time of Delivery (as
defined in Section 4 hereof) for any Designated Certificates, the
Pricing Agreement with respect to such Designated Certificates will
have been, duly authorized, executed and delivered by the Depositor;
(g) When Designated Certificates are delivered pursuant to
this Agreement and the Pricing Agreement with respect to such
Designated Certificates, such Designated Certificates will have been
duly authorized, executed, authenticated, issued and delivered and will
entitle the holders thereof to the benefits provided by the related
Trust Agreement, which will be substantially in the form filed as an
exhibit to the Registration Statement; and, at the Time of Delivery for
such Designated Certificates, such Trust Agreement will have been duly
authorized and duly qualified under the Trust Indenture Act and will
constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and such Trust Agreement and such Designated Certificates
will conform to the descriptions thereof contained in the Prospectus as
amended or supplemented with respect to such Designated Certificates;
(h) The issue and sale of the Certificates and the compliance
by the Depositor or the relevant Trust, as applicable, with all of the
provisions of the Certificates, the Trust Agreement, this Agreement and
any Pricing Agreement, and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Depositor or such Trust
is a party or by which the Depositor or such Trust is bound or to which
any of the property or assets of the Depositor or such Trust is
subject, nor will such action result in any violation of the provisions
of the Certificate of Incorporation or By-laws of the Depositor or the
Trust Agreement establishing such Trust or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Depositor or such Trust or any of its properties
(each such court, agency or body, a "Governmental Authority"); and no
consent, approval, authorization, order, registration or qualification
of or with any Governmental Authority is required for the issue and
sale of the Certificates or the consummation by the Depositor or such
Trust of the transactions contemplated by this Agreement or any Pricing
Agreement or the applicable Trust Agreement, except such as have been,
or will have been prior to the Time of Delivery, obtained under the Act
and the Trust Indenture Act and such consents, approvals,
authorizations, orders, 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 Underwriters;
(i) The statements set forth in the Prospectus under the
captions "Description of
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Trust Agreement", "Description of Trust Property", "Description of Swap
Agreements" and "Description of Certificates", insofar as they purport
to constitute a summary of the terms of the Certificates, and under the
caption "Plan of Distribution", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(j) Neither the Depositor nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws, and neither
the Depositor nor any of its subsidiaries nor the relevant Trust is in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, note, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound;
(k) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Depositor or any
of its subsidiaries or, to the best knowledge of the Depositor after
due inquiry, the relevant Trust is a party or of which any property of
the Depositor or any of its subsidiaries or, to the best knowledge of
the Depositor after due inquiry, the relevant Trust is the subject
which, if determined adversely to the Depositor or any of its
subsidiaries or such Trust, as applicable, would individually or in the
aggregate have a material adverse effect on, as applicable, the current
or future consolidated financial position or results of operations of
the Depositor and its subsidiaries or such Trust; and, to the best of
the Depositor's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and
(l) Neither the Depositor nor any Trust is, or after giving
effect to the offering and sale of the Certificates will be, an
"investment company", as such term is defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act").
3. Upon the execution of the Pricing Agreement applicable to any
Designated Certificates and authorization by the Representatives of the release
of such Designated Certificates, the several Underwriters propose to offer such
Designated Certificates for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Certificates to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and, in the case of registered
Certificates, registered in such names as the Representatives may request upon
at least forty-eight hours' prior notice to the Depositor, shall be delivered by
or on behalf of the Depositor or the relevant Trust to the Representatives for
the account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by wire transfer of Federal (same-day)
funds to the account specified by the Depositor to the Representatives at least
forty-eight hours in advance or at such other place and time and date as the
Representatives and the Depositor may agree upon in writing, such time and date
being herein called the "Time of Delivery" for such Certificates.
Delivery at the time of Delivery of any Designated Certificates in
bearer form shall be effected by delivery of a single temporary global
Certificate to a common depositary in London for Euroclear Bank, S.A./N.V. and
Clearstream International, for credit to the accounts designated by the
Representatives. The Depositor shall cause definitive Certificates in bearer
form to be prepared and delivered in exchange for such global Certificate in the
manner and at such time as provided in the
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applicable Trust Agreement.
5. The Depositor agrees with each of the Underwriters of any Designated
Certificates:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Certificates in a form approved
by the Representatives and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of business
on the second business day following the execution and delivery of the
Pricing Agreement relating to the applicable Designated Certificates
or, if applicable, such earlier time as may be required by Rule 424(b);
to make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Certificates and prior to the
Time of Delivery for such Certificates which shall be disapproved by
the Representatives for such Certificates promptly after reasonable
notice thereof; to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Depositor 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 such
Certificates, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Certificates, of the
suspension of the qualification of such Certificates for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Certificates or
suspending any such qualification, to promptly use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify, or cause to be
qualified, such Certificates for offering and sale under the securities
laws of such jurisdictions as the Representatives may request and to
comply, or cause compliance, with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such
Certificates; provided that in connection therewith neither the
Depositor nor any Trust shall be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with written and electronic copies
of the Prospectus in New York City as amended or supplemented in such
quantities as the Representatives may reasonably request, and, if the
delivery of a prospectus is required at any time in connection with the
offering or sale of such Certificates and if at such time any event
shall have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the
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circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the Representatives
and upon their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many written and electronic copies as the Representatives may from time
to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect
such compliance;
(d) During the period beginning from the date of the Pricing
Agreement for such Designated Certificates and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Certificates, as notified to the Depositor by the
Representatives and (ii) the Time of Delivery for such Designated
Certificates, not to, and cause the relevant Trust not to, offer, sell,
contract to sell or otherwise dispose of any debt securities of any
Trust which mature more than one year after such Time of Delivery and
which are substantially similar to such Designated Certificates (it
being understood that Certificates of another series based upon
different underlying securities shall be deemed not to be substantially
similar to such Designated Certificates), without the prior written
consent of the Representatives; and
(e) If the Depositor elects to rely upon Rule 462(b), the
Depositor shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement, and the Depositor shall at
the time of filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Act.
6. The Depositor covenants and agrees with the several Underwriters
that the Depositor will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Depositor's and the Trusts' counsel and
accountants in connection with the registration of the Certificates under the
Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Trust Agreement, any Blue Sky and Legal Investment Memoranda,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the
Certificates; (iii) all expenses in connection with the qualification of the
Certificates for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and Legal Investment Surveys; (iv) any fees charged by securities
rating services for rating the Certificates; (v) any filing fees incident to,
and the fees and disbursements of counsel for the Underwriters in connection
with, any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Certificates; (vi) the cost of preparing
the Certificates; (vii) the fees and expenses of any Trustee and any agent of
any Trustee and the fees and disbursements of counsel for any Trustee in
connection with any Trust Agreement, other indenture or the Certificates; and
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is
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understood, however, that, except as provided in this Section, and Sections 9
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Certificates by them, and any advertising expenses connected with any offers
they may make.
7. Each of the several Underwriters represents and agrees with the
Depositor that:
(a) except to the extent permitted under U.S. Treasury
Regulation Section 1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not
offered or sold, and during the restricted period will not offer or
sell, any Designated Certificates in bearer form (including any
Designated Certificate in global form that is exchangeable for
Designated Certificates in bearer form) to a person who is within the
United States or its possessions or to a U.S. person and (ii) it has
not delivered and will not deliver within the United States or its
possessions definitive Designated Certificates in bearer form during
the restricted period;
(b) it has, and through the restricted period will have, in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Designated Certificates in
bearer form are aware that such Designated Certificates may not be
offered or sold during the restricted period to a person who is within
the United States or its possessions or to a U.S. person, except as
permitted by the D Rules;
(c) if it is a U.S. person, it is acquiring Designated
Certificates in bearer form for purposes of resale in connection with
their original issuance and if it retains Designated Certificates in
bearer form for its own account, it will only do so in accordance with
the requirements of U.S. Treasury Regulation Section
1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Designated Certificates
in bearer form for the purpose of offering or selling such Designated
Certificates during the restricted period, it will either (i) obtain
from such affiliate for the benefit of the Depositor the
representations and agreements contained in subsections (a), (b) and
(c) of this Section 7 or (ii) repeat and confirm the representations
and agreements contained in subsections (a), (b) or (c) on such
affiliate's behalf and obtain from such affiliate the authority to so
obligate it;
(e) it will obtain for the benefit of the Depositor the
representations and agreements contained in subsections (a), (b), (c)
and (d) of this Section 7 from any person other than any affiliate with
whom it enters into a written contract, as defined in U.S. Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(4), for the offer or sale during
the restricted period of Designated Certificates in bearer form; and
(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, Designated Certificates
may be offered, sold, resold or delivered.
All terms used in the preceding paragraph that are defined in the
Internal Revenue Code (the "Code") and regulations thereunder, including the D
Rules, shall have the meanings specified therein.
8. The obligations of the Underwriters of any Designated Certificates
under the Pricing Agreement relating to such Designated Certificates shall be
subject, in the discretion of the
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Representatives, to the condition that all representations and warranties and
other statements of the Depositor in or incorporated by reference in the Pricing
Agreement relating to such Designated Certificates are, at and as of the Time of
Delivery for such Designated Certificates, true and correct, the condition that
the Depositor shall have performed all of its obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Certificates shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; if the Depositor has
elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have become effective by 10:00 P.M., Washington, D.C.
time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, or other counsel for the Depositor
and the relevant Trust satisfactory to the Representatives, shall have
furnished to the Representatives their written opinion, dated the Time
of Delivery for such Designated Certificates, in form and substance
satisfactory to the Representatives, to the effect that, subject to
customary assumptions:
(i) The Depositor has been duly incorporated and is
an existing corporation in good standing under the laws of the
State of Delaware;
(ii) This Agreement and the Pricing Agreement with
respect to the Designated Certificates have been duly
authorized, executed and delivered by the Depositor;
(iii) The applicable Trust Agreement has been duly
authorized, executed and delivered by the Depositor and duly
qualified under the Trust Indenture Act and constitutes a
valid and legally binding obligations of the Depositor
enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(iv) The Designated Certificates have been duly
authorized, executed, authenticated, issued and delivered and
entitle the holders thereof to the benefits provided by the
applicable Trust Agreement;
(v) All regulatory consents, authorizations,
approvals and filings required to be obtained or made by the
Company under the Federal laws of the United States, the laws
of the State of New York and the General Corporation Law of
the State of Delaware for the issuance, sale and delivery of
the Designated Certificates by such Trust or the Depositor, as
the case may be, to the Underwriters have been obtained or
made;
(vi) The issuance of the Designated Certificates and
the sale of the
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Designated Certificates by the Depositor to you pursuant to
this Agreement and the Pricing Agreement with respect to the
Designated Certificates do not, and the performance by the
Depositor of its obligations under the applicable Trust
Agreement, this Agreement and the Pricing Agreement with
respect to the Designated Certificates and the performance by
such Trust of its obligations under the Designated
Certificates will not, (A) violate the Depositor's Certificate
of Incorporation or By-laws, (B) result in a default under or
breach of such Trust Agreement or (C) violate any Federal law
of the United States or law of the State of New York
applicable to the Depositor or such Trust. In connection with
the opinion set forth in this subsection (vi), such counsel
may state that: (x) such counsel expresses no opinion with
respect to Federal or state securities laws, other antifraud
laws and fraudulent transfer laws; and (y) insofar as
performance by the Depositor of its obligations under the
applicable Trust Agreement, this Agreement and the Pricing
Agreement with respect to the Designated Certificates or
performance by such Trust of its obligations under the
Designated Certificates is concerned, such counsel expresses
no opinion as to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights.
(vii) Neither the Depositor nor such Trust is an
"investment company", as such term is defined in the
Investment Company Act;
(viii) The Registration Statement and the Prospectus
as amended or supplemented, as of the date of the most recent
supplement, appeared on their face to be appropriately
responsive, in all material respects, to the requirements of
the Act, the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder; further, nothing
that came to such counsel's attention in the course of their
review has caused such counsel to believe that any part of the
Registration Statement, when such part became effective, or
the Prospectus as amended or supplemented, as of the Time of
Delivery, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus as amended or supplemented,
as of the date of the most recent supplement, contained any
untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading. In connection with the opinion set
forth in this subsection (viii), such counsel may state that:
(A) the limitations inherent in the independent verification
of factual matters and the character of determinations
involved in the registration process are such that such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus as amended or
supplemented except for those made under the captions
"Description of Trust Agreements", "Description of Trust
Property", "Description of Swap Agreements", "Description of
Certificates", "U.S. Federal Income Tax Consequences" and
"Underwriting" insofar as they relate to provisions of
documents or of United States Federal tax law therein
described; and (B) such counsel does not express any opinion
or belief as to (1) the financial statements or other
financial data contained in the Registration Statement or the
Prospectus as amended or supplemented, (2) information derived
from, or contained in, any documents filed with the Commission
by any person other than the Depositor or any of its
affiliates with
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respect to securities or other assets that constitute a part
of the property of such Trust (except to the extent that such
information constitutes a description of provisions of
documents that are publicly available) or (3) the statement of
the eligibility and qualification of the Trustee under the
applicable Trust Agreement.
(c) Xxxxx Xxxx Xxxxxxx, Esq., Secretary of the Depositor, or
other counsel for the Depositor and the relevant Trust satisfactory to
the Representatives, shall have furnished to the Representatives his or
her written opinion, dated the Time of Delivery for such Designated
Certificates, in form and substance satisfactory to the
Representatives, to the effect that:
(i) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Depositor or any
of its subsidiaries or, to the best knowledge of the Depositor
after due inquiry, such Trust is a party or of which any
property of the Depositor or any of its subsidiaries or, to
the best knowledge of the Depositor after due inquiry, such
Trust is the subject which, if determined adversely to the
Depositor or any of its subsidiaries or such Trust, as
applicable, would individually or in the aggregate have a
material adverse effect on, as applicable, the current or
future consolidated financial position or results of
operations of the Depositor and its subsidiaries or such
Trust; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(ii) The issue and sale of the Designated
Certificates and the compliance by the Depositor or such
Trust, as applicable, with all of the provisions of the
Designated Certificates, the applicable Trust Agreement, this
Agreement and the Pricing Agreement with respect to the
Designated Certificates and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the material
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Depositor or such Trust
is a party or by which the Depositor or such Trust is bound or
to which any of the property or assets of the Depositor or
such Trust is subject; and
(iii) Neither the Depositor nor any of its
subsidiaries is in violation of its Certificate of
Incorporation or By-laws, and neither the Depositor nor any of
its subsidiaries nor such Trust is in default in the
performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which it is a party or by which it
or any of its properties may be bound.
(d) (i) Neither the issuer of any securities that constitute a
part of the property of such Trust nor any of its subsidiaries shall
have sustained since the date of its latest audited financial
statements any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in filings
by such issuer with the Commission prior to the date of the Pricing
Agreement relating to the Designated Certificates, (ii) since the
respective dates as of which information is given in filings by such
issuer with the Commission prior to the date of the Pricing Agreement
relating
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to the Designated Certificates, there shall not have been any change in
the capital stock or long-term debt of such issuer or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting, as applicable, the general affairs,
management, financial position, stockholders' equity or results of
operations of such issuer and its subsidiaries, otherwise than as set
forth or contemplated in filings by such issuer with the Commission
prior to the date of the Pricing Agreement relating to the Designated
Certificates, and (iii) since the respective dates as of which
information is given in the Prospectus as amended prior to the date of
the Pricing Agreement relating to the Designated Certificates there
shall not have been any change, or any development involving a
prospective change, in or affecting, as applicable, the general
affairs, management, financial position or results of operations of the
Depositor and its subsidiaries and the relevant Trust, otherwise than
as set forth or contemplated in the Prospectus as amended prior to the
date of the Pricing Agreement relating to the Designated Certificates,
the effect of which, in any such case described in clause (i), (ii) or
(iii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Certificates on the
terms and in the manner contemplated in the Prospectus as first amended
or supplemented relating to the Designated Certificates;
(e) On or after the date of the Pricing Agreement relating to
the Designated Certificates (i) no downgrading shall have occurred in
the rating accorded the debt securities or preferred stock of any
issuer of securities that constitute a part of the property of such
Trust (or, in the case of any such issuer that is an insurance company,
such issuer's financial strength or claims paying ability) or the
Designated Certificates by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any such debt
securities or preferred stock (or, in the case of any such issuer that
is an insurance company, such issuer's financial strength or claims
paying ability) or of the Designated Certificates;
(f) On or after the date of the Pricing Agreement relating to
the Designated Certificates there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the securities of any issuer of
securities that constitute a part of the property of such Trust on the
principal exchange on which such issuer's common stock trades; (iii) a
general moratorium on commercial banking activities declared by either
Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (iv) in the judgment
of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Designated Certificates
on the terms and in the manner contemplated in the Prospectus as first
amended or supplemented relating to the Designated Certificates;
(g) The Depositor shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
(h) The Depositor shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Certificates a certificate or
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13
certificates of officers of the Depositor satisfactory to the
Representatives as to the accuracy of the representations and
warranties of the Depositor herein at and as of such Time of Delivery,
as to the performance by the Depositor of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to
the matters set forth in subsections (a) and (f) of this Section 8 and
as to such other matters as the Representatives may reasonably request;
and
(i) The Designated Certificates shall have been rated at least
Baa by Xxxxx'x Investors Service Inc. and BBB by Standard & Poor's, a
division of the XxXxxx-Xxxx Companies Inc. (including, in each case,
any successor rating agencies), and such ratings shall continue in
effect at the Time of Delivery.
9. (a) The Depositor will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Certificates, or any
amendment or supplement thereto, or arise out of or are 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 will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Depositor shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Certificates, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Depositor by any
Underwriter of Designated Certificates through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Certificates.
(b) Each Underwriter will indemnify and hold harmless the Depositor
against any losses, claims, damages or liabilities to which the Depositor may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Certificates, or any amendment or supplement
thereto, or arise out of or are 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, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Certificates, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Depositor by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Depositor for
any legal or other expenses reasonably incurred by the Depositor in connection
with investigating or defending any such action or claim as such expenses are
incurred.
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14
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Depositor on the one hand and the Underwriters
of the Designated Certificates on the other from the offering of the Designated
Certificates to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Depositor on the one
hand and the Underwriters of the Designated Certificates on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Depositor on the one hand and such Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Depositor bear to the total underwriting
discounts and commissions received by such Underwriters. The relative fault
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 Depositor on the
one hand or such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Depositor and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for
14
15
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include 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
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the applicable Designated
Certificates underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated
Certificates in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Certificates and
not joint.
(e) The obligations of the Depositor under this Section 9 shall be in
addition to any liability which the Depositor may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Depositor and to each
person, if any, who controls the Depositor within the meaning of the Act.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Depositor and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the
Depositor, or any officer or director or controlling person of the Depositor,
and shall survive delivery of and payment for the Certificates.
11. If for any reason Designated Certificates are not delivered by or
on behalf of the Depositor as provided herein, the Depositor will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses approved
in writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Certificates, but the Depositor shall then
be under no further liability to any Underwriter with respect to such Designated
Certificates except as provided in Sections 6 and 9 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Certificates shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the
15
16
Representatives as set forth in the Pricing Agreement; and if to the Depositor,
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Depositor set forth in the Registration Statement: Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Depositor by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Depositor and, to the
extent provided in Sections 9 and 10 hereof, the officers and directors of the
Depositor and each person who controls the Depositor or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Certificates
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
17. The Depositor is authorized, subject to applicable law, to disclose
any and all aspects of this potential transaction that are necessary to support
any U.S. federal income tax benefits expected to be claimed with respect to such
transaction, without the Underwriters imposing any limitation of any kind.
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If the foregoing is in accordance with your understanding, please sign
and return to us two counterparts hereof.
Very truly yours,
Credit And Repackaging Vehicle Corporation
By:
---------------------------------------
Name:
Title:
Accepted as of the date hereof:
---------------------------------------
(Xxxxxxx, Xxxxx & Co.)
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18
ANNEX I
PRICING AGREEMENT
Xxxxxxx, Sachs & Co.,
[As Representatives of the several
Underwriters named in Schedule I hereto,]
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
-, 2001
Ladies and Gentlemen:
Credit And Repackaging Vehicle Corporation, a Delaware corporation (the
"Depositor"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated July -, 2001 (the "Underwriting Agreement"),
between the Depositor on the one hand and Xxxxxxx, Xxxxx & Co. on the other
hand, to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Certificates specified in Schedule II hereto (the
"Designated Certificates"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Certificates which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Certificates pursuant to Section
12 of the Underwriting Agreement and the address of the Representatives referred
to in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Certificates, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Depositor agrees to
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Depositor, at the time and place and at
the purchase price to the Underwriters set forth in Schedule II hereto, the
principal amount of Designated Certificates set forth opposite the name of such
Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us two counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this
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19
letter and such acceptance hereof, including the provisions of the Underwriting
Agreement incorporated herein by reference, shall constitute a binding agreement
between each of the Underwriters and the Depositor. It is understood that your
acceptance of this letter on behalf of each of the Underwriters may be pursuant
to the authority set forth in a form of Agreement among Underwriters, the form
of which shall be submitted to the Depositor for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
Credit And Repackaging Vehicle Corporation
By:
---------------------------------------
Name:
Title:
Accepted as of the date hereof:
--------------------------------
(Xxxxxxx, Sachs & Co.)
[On behalf of each of the Underwriters]
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20
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
CERTIFICATES
TO BE
PURCHASED
UNDERWRITER[S]
Xxxxxxx, Xxxxx & Co............................................ $
[Names of other Underwriters]..................................
----------
Total........................................ $
==========
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SCHEDULE II
TITLE OF DESIGNATED CERTIFICATES:
Public Credit and Repackaged Securities(SM) (PCARS)(SM) Trust
Certificates Series -
AGGREGATE PRINCIPAL AMOUNT:
$-
PRICE TO PUBLIC:
-% of the principal amount of the Designated Certificates, plus
accrued interest, if any, from - to - [and accrued
amortization[, if any,] from - to - ]
PURCHASE PRICE BY UNDERWRITERS:
-% of the principal amount of the Designated Certificates, plus
accrued interest from - to - [and accrued amortization[, if
any,] from - to - ]
FORM OF DESIGNATED CERTIFICATES:
[Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the
Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TIME OF DELIVERY:
- a.m. (New York City time), -, 20-
TRUST AGREEMENT:
Trust Agreement dated -, 20-, between the Depositor and -, as trustee
MATURITY:
INTEREST RATE:
- [specify rate, rate basis or calculation method, as applicable]
INTEREST PAYMENT DATES:
-, commencing on -, 20-.]
CALL OPTION:
The Designated Certificates may be called, [otherwise than through the
sinking fund,] in whole or in part at the option of one or more persons
specified in the Trust Agreement, in the amount
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22
of $- or an integral multiple thereof, [on or after -, 20- at the
following call prices (expressed in percentages of principal amount).
If [redeemed on or before -, 20-, -%, and if] redeemed during the
12-month period beginning on -,
YEAR CALL PRICE
- -
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the call date.]
[on any interest payment date falling on or after -, 20-, at
the election of one or more persons specified in the Trust Agreement, at
a call price equal to the principal amount thereof, plus accrued interest
to the date of call]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Certificates are entitled to the benefit of a sinking
fund to retire $- principal amount of Designated Certificates on
- in each of the years 20- through 20-, at 100% of their
principal amount plus accrued interest[, together with [cumulative]
[noncumulative] redemptions at the option of the Depositor to retire an
additional $- principal amount of Designated Certificates in the
years 20- through 20- at 100% of their principal amount plus
accrued interest.]
[If Designated Certificates are extendable debt securities, insert]
EXTENDABLE PROVISIONS:
Designated Certificates are repayable on -, at the option of the
holder, at their principal amount with accrued interest. The initial
annual interest rate will be -%, and thereafter the annual interest
rate will be adjusted on -, - and - to a rate not less
than -% of the effective annual interest rate on U.S. Treasury
obligations with - -year maturities as of the - prior to such
-.
[If Designated Certificates are floating rate Certificates, insert --
FLOATING RATE PROVISIONS:
Initial annual interest rate will be -% through - [and
thereafter will be adjusted [monthly] [on each -, -, - and
-] [to an annual rate of -% above the average rate for -
-year [securities][certificates of deposit] issued by - and -
[insert names of banks].] [and the annual interest rate [thereafter]
[from - through -] will be the interest yield equivalent of the
weekly average per annum market discount rate for - -month Treasury
bills plus -% of Interest Differential (the excess, if any, of (i)
the then current weekly average per annum secondary market yield for
--month certificates of deposit over (ii) the then current interest
yield equivalent of the weekly average per annum market discount rate for
--month Treasury bills); [from - and thereafter the rate will
be the then current interest yield equivalent plus -% of Interest
Differential].]
[DEFEASANCE] [TERMINATION] PROVISIONS:
I-II-2
23
-
EXCHANGE PROVISIONS:
-
CLOSING LOCATION FOR DELIVERY OF DESIGNATED CERTIFICATES:
-
ADDITIONAL CLOSING CONDITIONS:
[Paragraph 8(f) of the Underwriting Agreement should be modified in the
event that the Certificates are denominated in, indexed to, or principal or
interest are paid in, a currency other than the U.S. dollar, more than one
currency or in a composite currency. The country or countries issuing such
currency should be added to the banking moratorium and hostilities clauses
and the following additional clause should be added to the paragraph (the
entire paragraph should be restated, as amended):]
"; ( ) the imposition of the proposal of exchange controls by any
governmental authority in [insert the country or countries issuing such
currency, currencies or composite currency]".
[ATTORNEYS-IN FACT:]
-
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives: -
Address for Notices, etc.: -
[OTHER TERMS:]
[Add description of particular tax, accounting or other unusual features (such
as the addition of event risk provisions) of the Designated Certificates, if
necessary to ensure agreement as to the terms of the Designated Certificates to
be purchased and sold. Such a description might appropriately be in the form in
which such features will be described in the Prospectus Supplement for the
offering.]
I-II-3
