EXHIBIT 1.1
SOUTHPOINT STRUCTURED ASSETS, INC.
TRUST CERTIFICATES, SERIES 1996-[___]
FORM OF UNDERWRITING AGREEMENT
_________, 199__
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Southpoint Structured Assets, Inc., a Delaware corporation (the "Company"),
proposes to cause _____________________________ Trust 199__-____ (the "Trust")
to issue and sell $______________ [aggregate principal amount/notional amount]
of its Trust Certificates, Class ___[, Class ___] [and [list others]]
(collectively, the "Certificates"), to be issued under the trust agreement
specified in Schedule I hereto (the "Trust Agreement") between the Company,
[______________, as Administrative Agent (the "Administrative Agent")] and the
Trustee identified in such Schedule (the "Trustee"), in each case, to the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you are
acting as representatives (the "Representatives"). If the firm or firms listed
in Schedule II hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives," as used herein,
shall each be deemed to refer to such firm or firms. The Certificates will
evidence the entire beneficial ownership interest in the Trust which consists of
the underlying securities specified in Schedule I hereto (the "Underlying
Securities").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on
Form S-3, relating to certain securities to be issued from time to time by
various trusts originated by the Company. The Company also has filed with, or
proposes to file with, the Commission pursuant to Rule 424 under the Securities
Act a prospectus supplement specifically relating to the Certificates. The
registration statement as amended to the date of this Agreement is hereinafter
referred to as the "Registration Statement" and the related prospectus in the
form first used to confirm sales of the Certificates is hereinafter referred to
as the "Basic Prospectus." The Basic Prospectus as supplemented by the
prospectus supplement specifically relating to the Certificates in the form
first used to confirm sales of the Certificates is hereinafter referred to as
the "Prospectus." Any preliminary form of the Prospectus Supplement which has
heretofore been filed pursuant to Rule 424, or prior to the effective date of
the Registration Statement, pursuant to Rule 402(a) or 424(a) is hereinafter
called a "Preliminary Prospectus Supplement." Any
reference to "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed under the
Exchange Act after the date of this Agreement, or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to cause the Trust to issue and sell the Certificates
to the several Underwriters as hereinafter provided, and each Underwriter, on
the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees to purchase, severally and not
jointly, from the Company the respective principal amount of Certificates set
forth opposite such Underwriter's name in Schedule II hereto at the purchase
price set forth in Schedule I hereto plus accrued interest, if any, from the
date specified in Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i) to make
a public offering of their respective portions of the Securities and (ii)
initially to offer the Certificates upon the terms set forth in the Prospectus,
and the Underwriters agree that all such offers and sales by such Underwriters
shall be made in compliance with all applicable laws and regulations.
3. (a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
the Underwriters, and the Underwriters agree to purchase from the Company, their
portion of the Certificates at a price equal to ______________% of the
[aggregate principal balance/notional amount] of the Certificates as of the
Closing Date. There will be added to the purchase price of the Certificates an
amount equal to interest accrued thereon from the Cut-off Date to but not
including the Closing Date.
(b) Delivery of and payment for the Certificates shall be made at 10:00
a.m., New York City time, on _______________, 199__, or such later date as you
shall designate, which date and time may be postponed by agreement between you
and the Company (such date and time of delivery and payment for the Certificates
being herein called the "Closing Date"). Delivery of the [Class __]
Certificates shall be made through the services of the Depository Trust Company
("DTC") [(such Certificates, the "DTC Registered Certificates")] or as otherwise
set forth in Schedule I hereto.
4. The Company represents and warrants to each Underwriter that:
(a) The Registration Statement on Form S-3 (No. 333-09883) in
respect of the Certificates has been filed with the Commission in the form
heretofore delivered or to be delivered to the Representatives and such
registration statement in such form has been declared effective by the
Commission and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission.
-2-
(b) The Certificates meet the requirements for use of Form S-3 under
the Securities Act, and the Registration Statement and the Prospectus
conform, and any amendments or supplements thereto will conform, in all
material respects to the requirements of the Securities Act and the rules
and regulations of the Commission thereunder, and the Registration
Statement, as of the applicable effective date, did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and the Prospectus, including any amendments or supplements
thereto, as of the date of the Prospectus Supplement and as of the Closing
Date, does not and will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company does not make any
representations or warranties as to the information contained in or omitted
from the Registration Statement or the Prospectus or any amendment thereof
or supplement thereto relating to the information identified by underlining
or other highlighting as shown in Exhibit D (the "Excluded Information");
and provided, further, that the Company does not make any representations
or warranties as to [either (i) any information in any Computational
Materials (as hereinafter defined) required to be provided by the
Underwriter to the Company pursuant to Section 6, except to the extent of
any information set forth therein that constitutes Pool Information (as
defined below), or (ii) as to] any information contained in or omitted from
the portions of the Prospectus identified by underlining or other
highlighting as shown in Exhibit E (the "Underwriter Information"). [As
used herein, "Pool Information" means information with respect to the
characteristics of the Underlying Securities as provided by or on behalf of
the Company to the Underwriter in final form and set forth in the
Prospectus Supplement.] The Company acknowledges that, [except for any
Computational Materials,] the Underwriter Information constitutes the only
information furnished in writing by the Underwriter or on behalf of the
Underwriter for use in connection with the preparation of the Registration
Statement, any preliminary prospectus or the Prospectus, and the
Underwriter confirms that such Underwriter Information is correct. The
conditions to the use by the Company of a registration statement on Form
S-3 under the Securities Act, as set forth in the General Instructions to
Form S-3, have been satisfied with respect to the Registration Statement
and the Prospectus.
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with corporate power and authority to enter into and perform its
obligations under this Agreement and the Trust Agreement; and the Company
is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which the ownership or lease of its
properties or the conduct of its business requires such qualification,
except where the failure to be so qualified, considering all such cases in
the aggregate, does not have a material adverse effect on the business or
properties of the Company.
(d) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding agreement of the Company
enforceable
-3-
in accordance with its terms, except that the enforceability hereof may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors, rights generally,
and (ii) general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and except that rights to
indemnification hereunder may be limited by public policy under applicable
securities laws.
(e) The Certificates have been duly authorized by the Company and, when
executed, authenticated and delivered in accordance with the Trust Agreement and
delivered to you pursuant to this Agreement, such Certificates will have been
duly and validly issued and outstanding and will be entitled to the benefits
provided by the Trust Agreement; at the Closing Date the Trust Agreement will be
duly authorized, executed and delivered by the Company and will constitute a
valid and binding agreement of the Company enforceable in accordance with its
terms, except that the enforceability thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and (ii) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law); and at the Closing Date the Trust Agreement and the
Certificates will conform in all material respects to the respective
descriptions thereof in the Prospectus and the representations and warranties of
the Company in the Trust Agreement will be true and correct.
(f) The issue and sale of the Certificates, the compliance by the Company
with all applicable provisions of the Certificates, the Trust Agreement and this
Agreement, and the consummation of the transactions herein or therein
contemplated will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, mortgage, pledge, charge, security interest or
encumbrance (collectively, "Liens") upon any property or assets of the Company
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is subject,
nor will any such action result in any violation of the provisions of the
Certificate of Incorporation or the by-laws of the Company or of any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no consent, notice,
approvals, authorization, order, registrations or qualification of or with any
such court or governmental agency or body is required for the issue and sale of
the Certificates or the consummation by the Company of the other transactions
contemplated by this Agreement or the Trust Agreement except such as have been
obtained and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Certificates by the
Underwriters.
(g) Other than as set forth or contemplated in the Prospectus, there are no
legal or governmental proceedings pending to which the Company is a party or of
which any property of the Company is the subject which, if determined adversely
to
-4-
such person would individually or in the aggregate have a material adverse
effect on the financial position, earnings, management, stockholders
equity or results of operations of the Company or which might interfere
with or adversely affect the consummation of the transactions contemplated
herein or in the Trust Agreement; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(h) At the time of execution and delivery of the Trust Agreement, the
Company will have good and marketable title to the Underlying Securities
being transferred to the Trust pursuant thereto, free and clear of any
Liens, and will not have assigned to any person any of its rights, title or
interest therein; the Company will have the power and authority to transfer
the Underlying Securities to the Trust on the Closing Date and the Trust
will have been assigned all right, title and interest held by the Company
in and to the Underlying Securities.
(i) Any taxes, fees and other governmental charges in connection with
the execution, delivery and performance of this Agreement, the Trust
Agreement and the Certificates have been or will be paid at or prior to the
Closing Date.
(j) The Trust created by the Trust Agreement is not required to be
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
5. Each Underwriter represents and warrants to and agrees with the Company
that:
(a) Such Underwriter will have funds available at __________________
in the Underwriter's account at such bank at the time all documents are
executed and the closing of the sale of the Certificates is completed
except for the transfer of funds and the delivery of the Certificates. Such
funds will be available for immediate transfer into the account of the
Company maintained at such bank.
[(b) As of the date hereof and as of the Closing Date, such
Underwriter has complied with all of its obligations hereunder including
Section 6, and, with respect to all Computational Materials provided by
such Underwriter to the Company pursuant to Section 6, if any, such
Computational Materials are accurate (except to the extent of any errors
therein that are caused by errors in the Pool Information). The
Computational Materials provided by such Underwriter to the Company
constitute a complete set of all Computational Materials that are required
to be filed with the Commission.]
6. Computational Materials. It is understood that the Underwriters may
prepare and provide to prospective investors certain Computational Materials in
connection with their offering of the Certificates, subject to the following
conditions:
(a) The Underwriters shall comply with all applicable laws and
regulations in connection with the use of Computational Materials,
including the No-Action Letter of May 20, 1994 issued by the Commission to
Xxxxxx, Xxxxxxx Acceptance Corporation
-5-
I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset
Corporation, as made applicable to other issuers and underwriters by the
Commission in response to the request of the Public Securities Association
dated May 24, 1994 (collectively, the "Xxxxxx/PSA Letter").
(b) For purposes hereof, "Computational Materials" as used herein
shall have the meaning given such term in the Xxxxxx/PSA Letter, but shall
include only those Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of the
Underwriters.
(c) All Computational Materials (except those identified to the
Company on the date hereof) provided to prospective investors that are
required to be filed pursuant to the Xxxxxx/PSA Letter shall bear a legend
on each page including the following statement:
"The information herein has been provided solely by
______________________________ [name of Underwriter]. Neither the
Issuer of the Certificates nor any of its Affiliates makes any
representation as to the accuracy or completeness of the information
herein. The information herein is preliminary, and will be superseded
by the applicable Prospectus Supplement and by any other information
subsequently filed with the Securities and Exchange Commission."
The Company shall have the right to require additional specific
legends or notations to appear on any Computational Materials, the right to
require changes regarding the use of terminology and the right to determine
the types of information appearing therein. Notwithstanding the foregoing,
this subsection (c) will be satisfied if all such Computational Materials
bear a legend in the form set forth in Exhibit G hereto.
(d) The Underwriters shall provide the Company with representative
forms of all Computational Materials prior to their first use, to the
extent such forms have not previously been approved by the Company for use
by the Underwriters. The Underwriters shall provide to the Company, for
filing on Form 8-K as provided in Section 7(j), copies (in such format as
required by the Company) of all Computational Materials that are required
to be filed with the Commission pursuant to the Xxxxxx/PSA Letter. The
Underwriters may provide copies of the foregoing in a consolidated or
aggregated form including all information required to be filed. All
Computational Materials described in this subsection (d) must be provided
to the Company not later than 10:00 a.m. New York time one business day
before filing thereof is required pursuant to the terms of this Agreement.
(e) All information included in the Computational Materials shall be
generated based on substantially the same methodology and assumptions that
are used to generate the information in the Prospectus Supplement as set
forth therein;
-6-
provided, however, that the Computational Materials may include information
based on alternative assumptions if specified therein. If any Computational
Materials that are required to be filed were based on assumptions with
respect to the Pool that differ from the final Pool Information in any
material respect or on Certificate structuring terms that were revised
prior to the printing of the Prospectus, the Underwriters shall prepare
revised Computational Materials based on the final Pool Information and
structuring assumptions, circulate such revised Computational Materials to
all recipients of the preliminary versions thereof and include such revised
Computational Materials (marked, "as revised") in the materials delivered
to the Company pursuant to subsection (d) above.
(f) The Company shall not be obligated to file any Computational
Materials that have been determined to contain any material error or
omission, except any such Computational Materials filed together with the
corrected Computational Materials. In the event that any Computational
Materials are determined, within the period which the Prospectus relating
to the Certificates is required to be delivered under the Securities Act,
to contain a material error or omission, the Underwriters shall prepare a
corrected version of such Computational Materials, shall circulate such
corrected Computational Materials to all recipients of the prior versions
thereof and shall deliver copies of such corrected Computational Materials
(marked, "as corrected") to the Company for filing with the Commission in a
subsequent Form 8-K submission (subject to the Company's obtaining an
accountant's comfort letter in respect of such corrected Computational
Materials, which shall be at the expense of the Underwriters).
(g) If an Underwriter does not provide any Computational Materials to
the Company pursuant to subsection (d) above, such Underwriter shall be
deemed to have represented, as of the Closing Date, that it did not provide
any prospective investors with any information in written or electronic
form in connection with the offering of the Certificates that is required
to be filed with the Commission in accordance with the Xxxxxx/PSA Letter,
and the Underwriters shall provide the Company with a certification to that
effect on the Closing Date.
(h) In the event of any delay in the delivery by an Underwriter to
the Company of all Computational Materials required to be delivered in
accordance with subsection (d) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to Section 7(j),
the Company shall have the right to delay the release of the Prospectus to
investors or to such Underwriter, to delay the Closing Date and to take
other appropriate actions in each case as necessary in order to allow the
Company to comply with its agreement set forth in Section 7(j) to file the
Computational Materials by the time specified therein.
(i) Each Underwriter represents that it has in place, and covenants
that it shall maintain internal controls and procedures which it reasonably
believes to be sufficient to ensure full compliance with all applicable
legal requirements of the
-7-
Xxxxxx/PSA Letter with respect to the generation and use of Computational
Materials in connection with the offering of the Certificates.
Each Underwriter further agrees that on or prior to the fifth day after the
Closing Date, it shall provide the Company with a certificate, substantially in
the form of Exhibit F attached hereto, setting forth (i) in the case of each
class of Certificates, (a) if less than 10% of the aggregate principal balance
of such class of Certificates has been sold to the public as of such date, the
value calculated pursuant to clause (b)(iii) of Exhibit F hereto, or, (b) if 10%
or more of such class of Certificates has been sold to the public as of such
date but no single price is paid for at least 10% of the aggregate principal
balance of such class of Certificates, then the weighted average price at which
the Certificates of such class were sold expressed as a percentage of the
principal balance of such class of Certificates sold, or (c) the first single
price at which at least 10% of the aggregate principal balance of such class of
Certificates was sold to the public, (ii) the prepayment assumption used in
pricing each class of Certificates, and (iii) such other information as to
matters of fact as the Company may reasonably request in writing to enable it to
comply with its reporting requirements with respect to each class of
Certificates to the extent such information can in the good faith judgment of
the Underwriter be determined by it.]
7. The Company covenants and agrees with the several Underwriters as
follows:
(a) to cause the Prospectus to be transmitted to the Commission for
filing pursuant to Rule 424(b) under the Securities Act by means reasonably
calculated to result in filing with the Commission pursuant to said rule;
(b) to deliver to each Representative and counsel for the
Underwriters, at the expense of the Company, a signed copy of the
Registration Statement (as originally filed) and each amendment thereto, in
each case including exhibits and, during the period mentioned in
paragraph (e) below and to each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto) as you may
reasonably request;
(c) from the date hereof and prior to the Closing Date, to furnish to
you a copy of any proposed amendment or supplement to the Registration
Statement or the Prospectus, for your review, and not to file any such
proposed amendment or supplement to which you reasonably object;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company or the Trust
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Certificates, and during such
same period, to advise you promptly, and to confirm such advice in writing,
(i) when any amendment to the Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for any additional information, (iii) of the issuance by the Commission of
any stop order
-8-
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (iv) of
the receipt by the Company or the Trust of any notification with respect to
any suspension of the qualification of the Certificates for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of any
such stop order or notification and, if issued, to obtain as soon as
possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Certificates in the opinion of counsel for the Underwriters
a prospectus relating to the Certificates is required by law to be
delivered in connection with sales by an Underwriter or dealer, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and addressees
you will furnish to the Company) to which Certificates may have been sold
by you on behalf of the Underwriters and to any other dealers upon request,
such amendments or supplements to the Prospectus as may be necessary so
that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Certificates for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Certificates and to pay all
fees and expenses (including fees and disbursements of counsel to the
Underwriters) reasonably incurred in connection with such qualification and
in connection with the determination of the eligibility of the Certificates
for investment under the laws of such jurisdictions as you may designate;
provided, however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to general or unlimited service of process
in any jurisdiction where it is not now so subject;
(g) to make generally available to its security holders and to you as
soon as practicable an earnings statement covering a period of at least
twelve months beginning with the first fiscal quarter of the Company
occurring after the effective date of the Registration Statement, which
shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 of the Commission promulgated thereunder;
(h) so long as the Certificates are outstanding, to furnish to you
copies of all reports or other communications (financial or other)
furnished to holders of Certificates, and copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange;
-9-
(i) to pay all costs and expenses incident to the performance of its
obligations hereunder, including without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Certificates,
including any expenses of the Trustee, (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration Statement,
the Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Certificates under the laws of such jurisdictions as the
Underwriters may designate (including fees of counsel for the Underwriters
and their disbursements), (iv) in connection with the listing of the
Certificates on any stock exchange, (v) related to any filing with National
Association of Securities Dealers, Inc., (vi) in connection with the
printing (including word processing and duplication costs) and delivery of
this Agreement, the Trust Agreement and the furnishing to Underwriters and
dealers of copies of the Registration Statement and the Prospectus,
including mailing and shipping, as herein provided and (vii) payable to
rating agencies in connection with the rating of the Certificates; and
[(j) to file the Computational Materials (if any) provided to it by
the Underwriters under Section 6 with the Commission pursuant to a Current
Report on Form 8-K by 10:00 a.m. on the morning the Prospectus is delivered
to the Underwriters; provided, however, that prior to such filing of the
Computational Materials by the Company, the Underwriters must comply with
their obligations pursuant to Section 6 and the Company must receive a
letter from __________________, certified public accountants, satisfactory
in form and substance to the Company and its counsel, to the effect that
such accountants have performed certain specified procedures, all of which
have been agreed to by the Company, as a result of which they determined
that all information that is included in the Computational Materials (if
any) provided by the Underwriters to the Company for filing on Form 8-K, as
provided in Section 6 and this paragraph (j), is accurate. The foregoing
letter shall be at the expense of the Underwriters. The Company also will
file with the Commission within fifteen days of the issuance of the
Certificates a Current Report on Form 8-K (for purposes of filing the Trust
Agreement).]
8. The several obligations of the Underwriters hereunder shall be subject
to the following conditions:
(a) the representations and warranties of the Company contained
herein are true and correct on and as of the Closing Date as if made on and
as of the Closing Date and the Company shall have complied with all
agreements and all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission pursuant
to Rule 424 within the applicable time period prescribed for such filing by
the rules and regulations under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be
-10-
pending before or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your satisfaction;
(c) since the respective dates as of which information is given in
the Prospectus there shall not have been any material adverse change or any
development involving a material adverse change, in or affecting the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company, otherwise
than as set forth or contemplated in the Prospectus, the effect of which in
the judgment of the Representatives makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Certificates on
the terms and in the manner contemplated in the Prospectus;
(d) the Representatives shall have received on and as of the Closing
Date a certificate of an executive officer of the Company satisfactory to
you to the effect set forth in subsections (a) and (b) of this Section and
to the further effect that there has not occurred any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the
Company from that set forth or contemplated in the Registration Statement;
(e) Xxxxxxx and Xxxxxx, special counsel for the Company, shall have
furnished to you their written opinion, dated the Closing Date,
substantially to the effect set forth in Exhibit A-1 and A-2;
(f) ______________________, counsel to the Trustee shall have
furnished to you their opinion, dated the Closing Date, substantially to
the effect set forth in Exhibit B, in form and substance satisfactory to
you;
(g) the Underwriters shall have received on and as of the Closing
Date an opinion of _____________________________________, counsel to the
Underwriters, substantially to the effect set forth in Exhibit C in form
and substance satisfactory to you;
(h) the Certificates shall have been approved for listing on the
[insert name of stock exchange], subject to official notice of issuance;
[(i) The Underwriter shall have received from ____________________
__________, certified public accountants, a letter dated the date hereof
and satisfactory in form and substance to you and the Underwriter's
counsel, to the effect that they have performed certain specified
procedures, all of which have been agreed to by the Underwriter, as a
result of which they determined that certain information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement
under the captions "Description of the Deposited Assets", "Yield on the
Certificates", "Description of the Certificates" and "Descriptions of the
Trust Agreement" agrees with the records of the Company excluding any
questions of legal interpretation;]
-11-
(j) The [Class __] Certificates shall have been rated "___" by
_________ _________________ and the [Class __] Certificates shall have been
rated "___" by ___________________________ [add other Classes if any]; and
(k) on or prior to the Closing Date, the Company shall have furnished
to the Representatives such further certificates and documents as the
Representatives shall reasonably request.
9. The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including without
limitation the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein; provided that
neither the Company nor the Underwriter will be liable in any case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein relating to the Excluded Information; and provided
further, that the foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter (or to the benefit of any
person controlling such Underwriter) from whom the person asserting any such
losses, claims, damages or liabilities purchased Certificates if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Certificates to such
person.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference [(i)] the Underwriter Information [and (ii) the Computational
Materials, except to the extent of any errors in the Computational Materials
that are caused by errors in the Pool Information].
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such
-12-
person (the "Indemnified Person") shall promptly notify the person against whom
such indemnity may be sought (the "Indemnifying Person") in writing, and the
Indemnifying Person, upon request of the Indemnified Person, shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters and such control persons of Underwriters
shall be designated in writing by the first of the named Representatives on
Schedule I hereto and any such separate firm for the Company, its directors, its
officers who sign the Registration Statement and such control persons of the
Company or authorized representatives shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 9 is unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Certificates or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same respective
proportions as the
-13-
net proceeds from the offering of such Certificates (before deducting expenses)
received by the Company and the total underwriting discounts and the commissions
received by the Underwriters bear to the aggregate public offering price of the
Certificates. The relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Certificates underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 9 are several in proportion
to the respective principal amount of the Certificates set forth opposite their
names in Schedule I hereto, and not joint.
The indemnity and contribution agreements contained in this Section 9 are
in addition to any liability which the Indemnifying Persons may otherwise have
to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 9 and
the representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Certificates.
10. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the
-14-
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Representatives, is material and
adverse and which, in the judgment of the Representatives, makes it
impracticable to market the Certificates on the terms and in the manner
contemplated in the Prospectus.
11. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Certificates which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Certificates which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Certificates, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Certificates set forth opposite their
respective names in Schedule I hereto bears to the aggregate principal amount of
Certificates set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify,
to purchase the Certificates which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the principal amount of Certificates that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 11 by an
amount in excess of [one-ninth] of such principal amount of Certificates without
the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Certificates and
the aggregate principal amount of Certificates with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Certificates to be purchased, and arrangements satisfactory to you and the
Company for the purchase of such Certificates are not made within [36] hours
after such default, this Agreement shall terminate without liability on the
party of any non-defaulting Underwriter or the Company. In any such case either
you or the Company shall have the right to postpone the Closing Date, but in no
event for longer than [seven] days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
12. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all out-of-
pocket expenses (including the fees and expenses of their
-15-
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering of Certificates.
13. This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Certificates
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
14. Any action by the Underwriters hereunder may be taken by you jointly
or by the first of the named Representatives set forth in Schedule I hereto
alone on behalf of the Underwriters, and any such action taken by you jointly or
by the first of the named Representatives set forth in Schedule I hereto alone
shall be binding upon the Underwriters. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted and confirmed by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in
Schedule II hereto. Notices to the Company shall be given to it at Southpoint
Structured Assets, Inc., 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, (fax:
000-000-0000); Attention: X. Xxxxx Xxxxxx.
-16-
15. This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
Very truly yours,
Southpoint Structured Assets, Inc.
By ______________________________________
Name _________________________________
Title ________________________________
Accepted: ___________, 199_
[Lead Manager]
[Co-Manager]
Acting severally on behalf of themselves/2/
and the several Underwriters listed in
Schedule II hereto.
By: [Lead Manager]
By ________________________________
Name ___________________________
Title __________________________
------------------------------
/1/ Delete if only one Representative.
/2/ Delete if only one Representative and change "themselves" to "itself".
-17-
SCHEDULE I
Representatives:/1/ ______________________________________
Underwriting Agreement
dated: ______________________________________
Registration Statement No.: 333-09883
Title of Certificates: Trust Certificates, Series 199__-[___]
$[Notional Amount] [(Approximate)], Class ___
Certificates
[_____%] [Variable] Pass-Through Rate
$[Notional Amount] [(Approximate)], Class ___
Certificates
[_____%] [Variable] Pass-Through Rate]
Underlying Assets: [Pool of publicly issued debt securities having a
term of [not less than ___ years and not more than
___ years] issued by one or more corporations,
banking organizations or insurance companies
organized under the laws of the United States or
any State]
[Pool of _____% [floating rate] publicly issued
debt securities [having a term of not less than
___ years and not more than ___ years] issued by
[the United States of America] [U.S. Government
sponsored entity issuers] [Government Trust
Certificates] [obligations guaranteed by the
United States Agency for International
Development]]
Aggregate principal amount: $______________________________________
Price to Public: ___% of the principal amount of the Certificates,
plus accrued interest, if any, from _________,
19__ to the Closing Date
Trust Agreement: Trust Agreement dated as of _________ between the
Company[, _________ as Administrative Agent] and
_____________________ as Trustee
Maturity: ________________________________________
Interest Rate: ________________________________________
Interest Payment Dates: ________________________________________
Optional Redemption
Provisions: ________________________________________
____________________________
/1/ Bookrunning Representative should be named first for purposes of Sections 9
and 14.
Sinking Fund Provisions: ________________________________________
Other Provisions: ________________________________________
Closing Date and Time of
Delivery: ________________________________________
Closing Location: ________________________________________
Address for Notices to
Underwriters: ________________________________________
I-2
SCHEDULE II
Principal Amount
of Certificates To
Underwriter Be Purchased
____________________________ .................... $
----------------
Total................................... $
================
EXHIBIT A-1
[XXXXXXX AND XXXXXX LETTERHEAD]
[Date]
Southpoint Structured Assets, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
[The Representatives]
Re: Southpoint Structured Assets, Inc.
Trust Certificates, Series 199__-___
------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Southpoint Structured Assets, Inc. (the
"Company") in connection with the issuance and sale by the Company of Trust
Certificates, Series 199__-_________ (the "Certificates") pursuant to a trust
agreement, dated as of _________ 1, 19___ (the "Trust Agreement"), among the
Company, [_______________________, as Administrative Agent (the "Administrative
Agent")] and ___________________________, as trustee (the "Trustee"). The
Certificates consist of [_______ classes designated as Class___, Class___ and
[list others]. The Class___ Certificates [, the Class___ Certificates (other
than a de minimis portion thereof)] [and the Class___ Certificates] are
referred to herein as the "Offered Certificates."
The Certificates will evidence the entire undivided interest in a trust
fund (the "Trust Fund") consisting primarily of a pool of [publicly issued debt
securities having a term of [not less than ___ years and not more than ___
years] issued by one or more corporations, banking organizations or insurance
companies organized under the laws of the United States or any State (the
"Underlying Securities")] [_____% [floating rate] publicly issued debt
securities [having a term not less than ___ years and not more than ___ years]
issued by [the United States of America] [U.S. Government-sponsored entities
issuers] [Government Trust Certificates] [obligations guaranteed by the United
States Agency for International Development] (the "Underlying Securities")].
The Offered Certificates are included in a Registration Statement on Form S-3
(File No. 333-09883) filed by the Company with the Securities and Exchange
Commission (the "Commission") on ___________, 199__, and declared effective on
_________________, 199__ (as amended as of the date hereof, the "Registration
Statement"), and were offered by the prospectus dated ___________, 199__, as
supplemented by the prospectus supplement dated ______________, 199__ (together,
the
"Prospectus"), filed with the Commission pursuant to Rule 424(b) of the rules
and regulations of the Commission under the Securities Act of 1933, as amended
(the "Act").
The Company will sell to _____________________________ (the "Underwriter")
the Offered Certificates pursuant to an Underwriting Agreement, dated
_____________, 199__, between the Company and the Underwriter (the "Underwriting
Agreement"; the Trust Agreement, and the Underwriting Agreement, collectively,
the "Agreements"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Agreements. This opinion letter is rendered pursuant
to Section 8(e) of the Underwriting Agreement.
In arriving at the opinion expressed below, we have examined and relied on
the following documents:
(a) executed copies of the Agreements;
(b) the articles of incorporation and bylaws of the Company;
(c) good standing certificates from the Secretary of State of the
State of Delaware concerning the Company;
(d) resolutions adopted by the Board of Directors of the Company at
a meeting held on __________, 199__, authorizing, among other things, the
issuance of series of certificates registered under the Registration
Statement;
(e) a Certificate of Approval executed by the________________________
and the ____________________________ of the Company, authorizing, among
other things, the issuance of the Certificates;
(f) the Registration Statement;
(g) the Prospectus;
(h) the forms of the Certificates; and
(i) the documents delivered by the Company on the Closing Date
pursuant to the Agreements.
In addition, we have examined and relied, as to factual matters, on the
representations of the Company in the Agreements and on originals or copies
certified or otherwise identified to our satisfaction of all such corporate
records of the Company and such other instruments and other certificates of
public officials, officers and representatives of the Company and the Trustee,
and we have made such investigations of law, as we have deemed appropriate as a
basis for the opinion expressed below.
Based upon such examination and having regard for legal considerations
which we deem relevant, we are of the following opinion:
1. The Registration Statement has become effective under the Act, and, to
our knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and not withdrawn, and no proceedings for that purpose
have been instituted or threatened under Section 8(d) of the Act.
2. The Registration Statement, as of the date it became effective, and the
Prospectus, as of the date of the Prospectus Supplement, other than any
financial or statistical information [or Computational Materials] contained
therein as to which we express no opinion, complied as to form in all material
respects with the requirements of the Act and the applicable rules and
regulations thereunder.
3. To our knowledge, there are no material contracts, indentures, or other
documents [(not including Computational Materials)] of a character required to
be described or referred to in either the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement other than
those described or referred to therein or filed as exhibits thereto.
4. The Offered Certificates, when duly and validly executed and
authenticated in accordance with the Trust Agreement and paid for and delivered
in accordance with the Underwriting Agreement, will be entitled to the benefits
of the Trust Agreement.
5. The statements set forth in the Prospectus under the headings
"Description of the Certificates" and "Description of the Trust Agreement,"
insofar as such statements purport to summarize certain provisions of the
Certificates and the Trust Agreement, are correct in all material respects. The
statements set forth in the Prospectus under the headings "Federal Income Tax
Consequences," and "ERISA Considerations," to the extent that they constitute
matters of federal law or legal conclusions with respect thereto, are correct in
all material respects.
6. Trust Fund created by the Trust Agreement is not required to be
registered under the Investment Company Act of 1940, as amended.
7. No consent, approval, authorization or order of any federal or State of
____________ court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by the terms of the
Agreements, except (a) such as have been obtained under the Act and (b) such as
may be required under the blue sky laws of any jurisdiction in connection with
the offer and sale of the Certificates, as to which we express no opinion.
8. Neither the sale of the Offered Certificates to the Underwriter by the
Company pursuant to the Underwriting Agreement nor the consummation by the
Company of any other of the transactions contemplated by, or the fulfillment by
the Company of the terms of the Agreements will result in a breach of any term
or provision of any federal or State of __________ statute or regulation or, to
our knowledge, conflict with, result in a breach, violation or acceleration of
or constitute a
default under any order of any federal or State of __________ court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Company.
9. Each of the Agreements has been duly authorized, executed and
delivered by the Company and, upon due authorization, execution and
delivery by the other parties thereto, each will constitute a valid, legal
and binding agreement of the Company, enforceable against the Company in
accordance with its terms.
In addition, we have participated in conferences with your representatives
concerning the Registration Statement and the Prospectus and have considered the
matters required to be stated therein and the statements contained therein,
although we have not independently verified the accuracy, completeness or
fairness of such statements (except as described in paragraph 5 above). Based
upon and subject to the foregoing, nothing has come to our attention to cause us
to believe that the Registration Statement (excluding any exhibits filed
therewith), as of the date it became effective, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Prospectus Supplement and as of the Closing
Date, contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that we have not been requested to and
we do not make any comment in this paragraph with respect to the financial
statements, schedules and other financial and statistical information contained
in the Registration Statement or the Prospectus).
With your permission we have assumed the following: (a) the authenticity of
original documents and the genuineness of all signatures; (b) the conformity to
the originals of all documents submitted to us as copies; (c) the truth,
accuracy and completeness of the information, factual matters, representations
and warranties contained in the records, documents, instruments and certificates
we have reviewed; and (d) except as specifically covered in the opinions set
forth above, the due authorization, execution and delivery on behalf of the
respective parties thereto of documents referred to herein and the legal, valid
and binding effect thereof on such parties.
Whenever a statement herein is qualified by the phrase "to our knowledge,"
it is intended to indicate that, during the course of our representation of the
Company, no information that would give us current actual knowledge of the
inaccuracy of such statement has come to the attention of those attorneys
currently in this firm who have rendered legal services in connection with this
opinion letter. However, we have not undertaken any independent investigation to
determine the accuracy of any such statement, and any limited inquiry undertaken
by us during the preparation of this opinion letter should not be regarded as
such an investigation; no inference as to our knowledge of any matters bearing
on the accuracy of any such statement should be drawn from the fact of our
representation of the Company.
A-1-4
Our opinion that any document is valid, legal and binding or enforceable in
accordance with its terms is subject to: (1) eliminations imposed by bankruptcy,
insolvency, reorganization, arrangement, moratorium or other laws relating to or
affecting the enforcement of creditors' rights generally; (2) general principles
of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law; and (3) rights to indemnification which may be
limited by applicable law or equitable principles or otherwise unenforceable as
against public policy.
With respect to our opinion set forth in paragraph 2, in passing on the
form of Registration Statement and the Prospectus, we have necessarily assumed
the correctness and completeness of the statements made therein.
We express no opinion as to matters of law other than the law of the State
of _______ and the United States of America.
This opinion letter is solely for your benefit and may not be relied upon
or used by, circulated, quoted or referred to, nor may copies hereof be
delivered to, any other person without our prior written approval. We disclaim
any obligation to update this opinion letter for events occurring or coming to
our attention after the date hereof.
Very truly yours,
[Xxxxxxx and Xxxxxx]
A-1-5
EXHIBIT A-2
[XXXXXXX AND XXXXXX LETTERHEAD]
__________, 199__
[The Underwriter]
Re: Southpoint Structured Assets, Inc.
Trust Certificates, Series 199__-__
-----------------------------------------------------------
Ladies & Gentlemen:
We have acted as special counsel to Southpoint Structured Assets, Inc. (the
"Company") in connection with the issuance and sale by the Company of Trust
Certificates, Series 199__-_________ (the "Certificates") pursuant to a trust
agreement, dated as of _________ 1, 19___ (the "Trust Agreement"), among the
Company, [_______________________, as Administrative Agent (the "Administrative
Agent")] and ___________________________, as trustee (the "Trustee"). The
Certificates consist of [_______ classes designated as Class ___, Class ___ and
[list others]. The Class ___ Certificates [, the Class ___ Certificates (other
than a de minimis portion thereof)] [and the Class ___ Certificates] are
referred to herein as the "Offered Certificates."
The Certificates will evidence the entire undivided interest in a trust
fund (the "Trust Fund") consisting primarily of a pool of [publicly issued debt
securities having a term of [not less than ___ years and not more than ___
years] issued by one or more corporations, banking organizations or insurance
companies organized under the laws of the United States or any State (the
"Underlying Securities")] [_____% [floating rate] publicly issued debt
securities [having a term not less than ___ years and not more than ___ years]
issued by [the United States of America] [U.S. Government-sponsored entities
issuers] [Government Trust Certificates] [obligations guaranteed by the United
States Agency for International Development] (the "Underlying Securities")]. The
Offered Certificates are included in a Registration Statement on Form S-3 (File
No. 333-09883) filed by the Company with the Securities and Exchange Commission
(the "Commission") on ___________, 199__, and declared effective on
_________________, 199__ (as amended as of the date hereof, the "Registration
Statement"), and were offered by the prospectus dated ___________, 199__, as
supplemented by the prospectus supplement dated ______________, 199__ (together,
the "Prospectus"), filed with the Commission pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Securities Act of 1933, as
amended (the "Act").
The Company will sell to _____________________________ (the "Underwriter")
the Offered Certificates pursuant to an Underwriting Agreement, dated
_____________, 199__,
between the Company and the Underwriter (the "Underwriting Agreement"; the Trust
Agreement, and the Underwriting Agreement, collectively, the "Agreements").
Capitalized terms used but not defined herein shall have the meanings set forth
in the Agreements. This opinion letter is rendered pursuant to Section 8(e) of
the Underwriting Agreement.
In connection with rendering this opinion letter, we have examined the
Agreements and such other records and other documents as we have deemed
necessary and relevant. As to matters of fact, we have examined and relied upon
representations of the parties contained in the Agreements and, where we have
deemed appropriate, representations and certifications of officers of the
Company, the Trustee or public officials. We have assumed the authenticity of
all documents submitted to me as originals, the genuineness of all signatures,
the legal capacity of natural persons and the conformity to the original of all
documents submitted to me as copies. We have assumed that all parties, except
for the Company, had the corporate power and authority to enter into and perform
all obligations under such documents, and, as to such parties, we also have
assumed the due authorization by all requisite corporate action, the due
execution and delivery and the validity, binding effect and enforceability of
such documents.
In rendering this opinion letter, we do not express any opinion concerning
law other than the law of the State of [__________], the corporate law of the
State of Delaware and the federal law of the United States, and we do not
express any opinion concerning the application of the "doing business" laws or
the securities laws of the jurisdiction other than the federal securities laws
of the United States. We do not express any opinion, either implicitly or
otherwise, on any issue not expressly addressed below.
Based upon the foregoing, we are of the opinion that:
1. The Company is duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
has the requisite power and authority, corporate or other, to own its
properties and conduct its business, as presently conducted by it, and to
enter into and perform its obligations under the Agreements and the Offered
Certificates.
2. Each of the Agreements has been duly and validly authorized,
executed and delivered by the Company and upon due authorization, execution
and delivery by other parties thereto will constitute the valid, legal and
binding agreements of the Company, enforceable against the Company in
accordance with its terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the rights of creditors,
(ii) general principles of equity, whether enforcement is sought in a
proceeding in equity or at law, and (iii) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of the Agreements
which purport to provide indemnification from securities law violations.
A-2-2
3. The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Agreements and when paid
for in accordance with the Underwriting Agreement will be entitled to the
benefits of the Agreements.
4. No consent, approval, authorization or order of the State of
___________ or federal court or governmental agency or body is required for
the consummation by the Company of the transactions contemplated by the
terms of the Agreements, except for those consents, approvals,
authorizations or orders which previously have been obtained.
5. Neither the sale, issuance and delivery of the Offered
Certificates by the Company as provided in the Agreements, nor the
consummation of any other of the transactions contemplated by, or the
fulfillment by the Company of any other of the terms of, the Agreements,
will result in a breach of any term or provision of the charter or bylaws
of the Company or any State of ____________ or federal statute or
regulation or conflict with, result in a breach, violation or acceleration
of, or constitute a default under, the terms of any indenture or other
material agreement or instrument to which the Company is a party or by
which they are bound or any order or regulation of the State of
___________________ or federal court, regulatory body, administrative
agency or governmental body having jurisdiction over the Company.
This opinion letter is rendered for the sole benefit of the persons or
entities to which it is addressed, and no other person or entity is entitled to
rely hereon without our prior written consent. Copies of this opinion letter may
not be furnished to any other person or entity, nor may any portion of this
opinion letter be quoted, circulated or referred to in any other document
without my prior written consent.
Very truly yours,
[Xxxxxxx and Xxxxxx]
A-2-3
EXHIBIT B
[COUNSEL TO TRUSTEE LETTERHEAD]
__________, 199__
Southpoint Structured Assets, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
[The Trustee]
[The Underwriters]
Ladies and Gentlemen:
We have acted as special counsel to _____________________________________
in its capacity as trustee (the "Trustee") in connection with the issuance and
sale by the Company of Trust Certificates, Series 199__-__ (the "Certificates")
pursuant to a trust agreement, dated as of _________________ 1, 19___ (the
"Trust Agreement"), among the Company, [__________________________, as
administrative agent (the "Administrative Agent")] and
_______________________________, as trustee (the "Trustee"). The Certificates
consist of [___________ classes designated as Class ___, Class ___ and [list
others]. The Class ___ Certificates [, the Class ___ Certificates] [and the
Class ___ Certificates] are referred to herein as the "Offered Certificates."
Based on the foregoing and subject to the qualifications and matters of
reliance set forth herein, it is our opinion that:
1. The Trustee is duly organized, validly existing and in good
standing as a _____________________________ under the laws of
_____________________, with full corporate and trust power and authority to
conduct its business and affairs as a Trustee.
2. The Trustee has full corporate power and authority to execute and
deliver the Trust Agreement and the Certificates and to perform its
obligations thereunder.
3. The Trustee has duly accepted the office of trustee under the
Trust Agreement.
4. The Trustee has duly authorized, executed, issued and delivered
the Trust Agreement and has duly and validly authorized, executed, issued
and delivered the Certificates as the Trustee.
5. The Trust Agreement constitutes the legal, valid and binding
agreements of the Trustee, enforceable against the Trustee in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the rights
of creditors generally and by general principles of equity and the
discretion of the court, regardless of whether such enforcement is
considered in a proceeding in equity or at law, and except as
enforceability may be determined according to or limited by the laws of
jurisdictions other than those specified below.
In rendering the foregoing opinion, we have assumed that the Trust
Agreement have been duly authorized, executed and delivered by the other parties
thereto and are valid, legal, binding and enforceable obligations of such
parties.
We express no opinion as to any matter other than as expressly set forth
above, and, in conjunction therewith, we specifically express no opinion as to
the status of the Certificates or the Trust Fund under any federal or state
securities laws, including, but not limited to, the Securities Act of 1933, as
amended, the Trust Indenture Act of 1939, as amended, and the Investment Company
Act of 1940, as amended.
This opinion is as of the date hereof and we undertake no, and disclaim
any, obligation to advise you of any change in any matter set forth herein. This
opinion has been furnished to you at your request in connection with the
transactions described herein, and it may not be relied upon by you for any
other purpose or by any other person without our prior written consent.
We are admitted to practice law under the laws of the State of
_____________ and the opinion set forth above is limited to the laws of the
State of ______________ and the laws of the United States of America.
Very truly yours,
[COUNSEL TO THE TRUSTEE]
B-2
EXHIBIT C
[COUNSEL TO THE UNDERWRITER LETTERHEAD]
__________, 199__
[The Underwriters]
Re: Southpoint Structured Assets, Inc.
Trust Certificates, Series 199__-___
------------------------------------
Ladies and Gentlemen:
We have acted as counsel to ____________________________ (the
"Underwriters") in connection with the sale by Southpoint Structured Assets,
Inc., a Delaware corporation (the "Company"), and the purchase by the
Underwriters pursuant to an underwriting agreement dated __________, 199__ (the
"Underwriting Agreement") of certificates entitled Trust Certificates, Series
199__-____, [Class ___, Class ___, Class ___] [, Class ___] [and Class ___] (the
"Offered Certificates"). The Offered Certificates together with the Trust
Certificates, Series 199__-______ [Class ___] [and] [Class ___] comprise the
entire issue of Certificates entitled Trust Certificates, Series 199__-____
(collectively, the "Certificates"). The Certificates are issued pursuant to a
Trust Agreement (the "Trust Agreement"), dated as of ___________, 199__, among
the Company, ___________________ as trustee (the "Trustee") [and
______________________________, as certificate administrator (the
"administrative agent")]. The Certificates evidence in the aggregate the entire
beneficial interest in a trust fund (the "Trust Fund") consisting primarily of
[publicly issued debt securities having a term of [not less than ___ years and
not more than ___ years] issued by one or more corporations, banking
organizations or insurance companies organized under the laws of the United
States or any State (the "Underlying Securities")] [_____% [floating rate]
publicly issued debt securities [having a term not less than ___ years and not
more than ___ years] issued by [the United States of America] [U.S. Government-
sponsored entities issuers] [Government Trust Certificates] [obligations
guaranteed by the United States Agency for International Development] (the
"Underlying Securities")]. Capitalized terms used, but not defined herein,
shall have the meanings assigned to such terms in the Trust Agreement.
We have examined such documents and records as we deemed appropriate,
including the following:
1. Copy of the Certificate of Incorporation of the Company and all
amendments thereto, certified by the Secretary of State of the State of
Delaware to be a true and correct copy.
2. Copy of the By-Laws of the Company certified by the Secretary of
the Company to be a true and correct copy.
3. Certificate of the Secretary of State of the State of Delaware,
dated as of recent date, to the effect that the Company is in good standing
under the laws of the State of Delaware.
4. Copy of resolutions adopted by the Board of Directors of the
Company in connection with the authorization, issuance and sale of the
Certificates, certified by the Secretary of Company to be a true and
correct copy.
5. Officer's Certificate of the Company pursuant to Section 6.3 of
the Underwriting Agreement.
6. Signed copy of the Underwriting Agreement.
7. Signed copy of the Trust Agreement.
8. Specimens of the Offered Certificates.
9. Signed copies of the Company's registration statement (File
No. 333-9883) on Form S-3 filed by the Company with the Securities and
Exchange Commission relating to Trust Certificates (the registration
statement in the form in which it became effective being hereinafter called
the "Registration Statement").
10. The final form of a prospectus dated ______________, 199__ (the
"Basic Prospectus").
11. The final form of a supplement dated _____________, 199__ to
the Basic Prospectus relating specifically to the Certificates (the
"Prospectus Supplement"; the Basic Prospectus and Prospectus Supplement are
herein collectively referred to as the "Prospectus.")
Based upon the foregoing, we are of the opinion that:
(a) The Registration Statement has become effective under the
Securities Act of 1933, as amended (the "Act"), and, to the best of our
knowledge and information, no proceedings for a stop order have been
instituted or are threatened under Section 8(d) of the Act.
(b) The Registration Statement as of its effective date and the
Prospectus as of the date of the Prospectus Supplement, other than the
numerical, financial and statistical data contained therein, as to which we
express no opinion, comply as to form in all material respects with the
requirements of the Act and the rules thereunder.
C-2
(c) The Underwriting Agreement has been duly and validly authorized,
executed and delivered by the Company.
[(d) The Trust Agreement has been duly and validly authorized,
executed and delivered by the Company and, assuming that it has been duly
and validly authorized, executed and delivered by the other parties
thereto, constitutes a valid, legal and binding agreement of the Company,
enforceable against the Company in accordance with its terms subject to
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and, as to enforceability, to general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.]
(e) The Offered Certificates, assuming that they have been duly and
validly authorized, executed and issued by the Trustee, will, when
authenticated as specified in the Trust Agreement and delivered to the
Underwriter pursuant to the Underwriting Agreement, be entitled to the
benefits of the Trust Agreement.
(f) The statements in the Prospectus under the headings "Federal
Income Tax Consequences," and "ERISA Considerations," to the extent that
they constitute matters of New York or Federal law or legal conclusions
with respect thereto, have been reviewed by us and provide a fair summary
of such law or legal conclusions.
(g) Trust Fund is not required to be registered under the Investment
Company Act of 1940, as amended.
We have endeavored to see that the Registration Statement and the
Prospectus comply with the Act and the rules and regulations of the Securities
and Exchange Commission thereunder relating to registration statements on Form
S-3 and related prospectuses, but we cannot, of course, make any representation
to you as to the accuracy or completeness of statements of fact contained in the
Registration Statement or Prospectus. Nothing, however, has come to our
attention that would lead us to believe that the Registration Statement at the
time it became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus as of the date
of the Prospectus Supplement and at the date hereof contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (other than the numerical, financial
and statistical data contained in the Registration Statement or the Prospectus,
as to which we express no opinion).
C-3
This opinion is for your benefit only and is not to be relied upon by any
other person. The opinions expressed herein are limited to matters of Federal
law and the laws of the State of [__________].
Very truly yours,
[Counsel to the Underwriter]
C-4
EXHIBIT D
EXCLUDED INFORMATION
EXHIBIT E
UNDERWRITER INFORMATION
EXHIBIT F
__________, 199__
Southpoint Structured Assets, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Re: Southpoint Structured Assets, Inc.
Trust Certificates,
Series 199__-___, [Class ___], [Class ___] and [Class ___]
----------------------------------------------------------
Pursuant to Section 6 of the Underwriting Agreement, dated _____________,
199__, among Southpoint Structured Assets, Inc., and
_________________________________, (the "Underwriter") relating to the
Certificates referenced above (the "Underwriting Agreement"), the undersigned
does hereby certify that:
(a) The prepayment assumption used in pricing the Certificates was
______% [CPR] [SPA].
(b) Set forth below is (i) the first price, as a percentage of the
principal balance of each class of Certificates, at which 10% of the
aggregate principal balance of each such class of Certificates was sold to
the public at a single price, if applicable, or (ii) if more than 10% of a
class of Certificates have been sold to the public but no single price is
paid for at least 10% of the aggregate principal balance of such class of
Certificates, then the weighted average price at which the Certificates of
such class were sold expressed as a percentage of the principal balance of
such class of Certificates, or (iii) if less than 10% of the aggregate
principal balance of a class of Certificates has been sold to the public,
the purchase price for each such class of Certificates paid by the
Underwriter expressed as a percentage of the principal balance of such
class of Certificates calculated by: (1) estimating the fair market value
of each such class of Certificates as of _____________, 199__; (2) adding
such estimated fair market value to the aggregate purchase price of each
class of Certificates described in clause (i) or (ii) above; (3) dividing
each of the fair market values determined in clause (1) by the sum obtained
in clause (2); (4) multiplying the quotient obtained for each class of
Certificates in clause (3) by the purchase price paid by the Underwriter
for all the Certificates; and (5) for each class of Certificates, dividing
the product obtained from such class of Certificates in clause (4) by the
original principal balance of such class of Certificates:
[Class ___: _______________]
[Class ___: _______________]
[Class ___: _______________]
[* less than 10% has been sold to the public]
The prices set forth above do not include accrued interest with respect to
periods before closing.
[THE UNDERWRITER]
By_______________________________________
Name:__________________________________
Title:_________________________________
F-2
EXHIBIT G
FORM OF LEGEND
