Exhibit 1.1.a
ABN AMRO SCORS DEPOSITOR INC.
ABN AMRO SCORS TRUST CERTIFICATES
SERIES 200o-[ ] TRUST
UNDERWRITING AGREEMENT
[ ], 200_
ABN AMRO SCORS Depositor Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We (the "Underwriter") acting on our own behalf and as
representative of the underwriters named in Schedule I hereto, understand that
ABN AMRO SCORS Depositor Inc. (the "Depositor"), a Delaware corporation,
proposes to form a trust (the "Trust"), which will issue and sell a series (a
"Series") of its Trust Certificates registered under the registration
statement referred to in Section 1(a) hereof (the "Certificates"). The primary
assets (the "Primary Assets") of the Trust will be $[ ] aggregate principal
amount of [ ]% [floating rate] [publicly traded debt security due [ ]] [a pool
of publicly issued [debt securities of various issuers]] [preferred securities
of trusts organized to issue trust-originated preferred securities] [term
preferred stock having an investment grade rating] [United States treasury
securities] [debt securities of various United States government sponsored
entities] [debt securities of various foreign government issuers] [issued by
[ ] [a pool of various domestic corporations, limited liability companies,
banking organizations and insurance companies] [a trust or other legal entity
organized under the laws of ______________ to issue trust preferred
securities] [the United States] [various United States government sponsored
entities ("GSEs")] [a pool of various foreign private issuers]]. The
Certificates will evidence a proportionate undivided beneficial ownership
interest in certain distributions of the Trust. The Certificates will be
issued by the Trust, pursuant to a Standard Terms for Trust Agreements, dated
as of [ ], 200_ between the Depositor and [ ], as trustee (the "Trustee"),
as supplemented by a Series Supplement, dated as of [ ], 200_ (the
"Series Supplement" and, together with the Standard Terms, the "Trust
Agreement").
The Certificates shall have the following terms:
Certificate
Number of Interest Final Scheduled
Designation Certificates Rate Distribution Date
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Class A-1 [ ]1 [ ]%1 [ ]
This Agreement relates to 100% of the Class A-1 Certificates (the
"Offered Certificates"). We may effect such transactions by selling the
Offered Certificates to or through dealers, and such dealers may receive from
us, for whom they act as agent, compensation in the form of underwriting
discounts, concessions or commissions.
Subject to the terms and conditions set forth or incorporated by
reference herein, and in reliance upon the representations and warranties set
forth in the document entitled "ABN AMRO SCORS Depositor Inc. -- ABN AMRO
SCORS Trust Certificates -- Underwriting Agreement Basic Provisions," a copy
of which is attached hereto (the "Basic Provisions"), we will offer the
Offered Certificates to the public at a price equal to 100% of the face amount
thereof.
We will pay for the Offered Certificates upon delivery of such
Certificates at our offices, at Park Avenue Plaza, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 10:00 A.M. (New York City time) on [ ], 200_, or at
such other time and place as we shall mutually agree (the "Closing Date"). The
purchase price shall equal [ ]% of the par amount of the Offered Certificates.
All of the provisions contained in the Basic Provisions are herein
incorporated by reference in their entirety and shall be deemed to be a part
of this Underwriting Agreement to the same extent as if such provisions had
been set forth in full herein. Unless otherwise defined herein, terms defined
in the Basic Provisions and the Trust Agreement are used herein as therein
defined.
Please accept this offer by having an authorized officer sign a
copy of this Underwriting Agreement in the space set forth below and returning
the signed copy, or by sending a written acceptance in the following form, to
us at Park Avenue Plaza, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000:
"We hereby accept your offer, set forth in the Underwriting Agreement,
dated [o], 200_, to purchase the Offered Certificates on the terms set forth
therein."
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1 The Certificateholders will be entitled to receive, on [ ] and [ ] of
each year, commencing on [ ] and ending on the Final Scheduled
Distribution Date, interest distributions at a rate of [ ]% per annum on
the outstanding principal amount of the Certificates. Each Certificate
will have a par amount of $[ ].
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Very truly yours,
ABN AMRO INCORPORATED,
for itself and as Representative of the
underwriters named in Schedule I hereto
By:
------------------------------------
Name:
Title:
Agreed and Accepted:
ABN AMRO SCORS DEPOSITOR INC.
By:
-------------------------
Name:
Title:
ABN AMRO SCORS Depositor Inc.
-----------------------------
ABN AMRO SCORS Trust Certificates
UNDERWRITING AGREEMENT BASIC PROVISIONS
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The basic provisions set forth herein are intended to be
incorporated by reference in an underwriting agreement (an "Underwriting
Agreement") of the type referred to in Section 2 hereof. With respect to any
particular Underwriting Agreement, the Underwriting Agreement, together with
the provisions hereof incorporated therein by reference, is herein referred to
as this "Agreement." Terms defined in the Underwriting Agreement and the Trust
Agreement (as hereinafter defined) are used herein as therein defined.
ABN AMRO SCORS Depositor Inc., a Delaware corporation (the
"Depositor"), proposes to form a trust (each, a "Trust"), which will issue and
sell a series (a "Series") of [ ] trust certificates registered under the
registration statement referred to in Section 1(a) hereof (the
"Certificates"). The Certificates will evidence a proportionate undivided
beneficial ownership interest in certain distributions of the Trust. The
Certificates will have the designations, denominations, interest rates,
distribution dates, final scheduled distribution dates and selling prices set
forth in the Underwriting Agreement.
SECTION 1. Representations and Warranties of the Depositor. The
Depositor represents, warrants and agrees that:
(a) A registration statement on Form S-3 (No. 333-111489) with
respect to the Offered Certificates has been prepared by the Depositor and
filed with the Securities and Exchange Commission (the "Commission"), and
complies as to form in all material respects with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
(the "Rules and Regulations") of the Commission thereunder, including Rule
415, and has become effective under the Act. As used in this Agreement, (i)
"Preliminary Prospectus" means each prospectus included in that registration
statement, or amendments or supplements thereof, before the registration
statement became effective under the Act, including any prospectus filed with
the Commission pursuant to Rule 424(a) of the Rules and Regulations; (ii)
"Registration Statement" means that registration statement and all exhibits
thereto, as amended or supplemented to the date of this Agreement; (iii)
"Basic Prospectus" means the applicable prospectus included in the
Registration Statement; and (iv) "Prospectus" means the Basic Prospectus,
together with any prospectus supplement specifically relating to the Offered
Certificates (a "Prospectus Supplement"), as filed with, or mailed for filing
to, the Commission pursuant to paragraphs (b) or (c) of Rule 424 of the Rules
and Regulations;
(b) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective and on the date of this Agreement,
complied, and (in the case of any amendment or supplement to any such document
filed with the Commission after the date as of which this representation is
being made) will comply, as to form in all material respects, with the
requirements of the Act, the Rules and Regulations; and the Registration
Statement and the Prospectus do not, and (in the case of any amendment or
supplement to any
such document filed with the Commission after the date as of which this
representation is being made) will not, contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; provided however,
that the Depositor makes no representation or warranty as to information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to the
Depositor by the Underwriter specifically for inclusion therein;
(c) The Depositor is not in violation of its corporate charter
or by-laws or in default under any agreement, indenture or instrument the
effect of which violation or default would be material to the Depositor; the
execution, delivery and performance of this Agreement and the Trust Agreement
and the consummation of the transactions contemplated therein have been, and
at the Closing Date (as defined in Section 4 hereof) the Trust Agreement
pursuant to which the Offered Certificates will be issued, and other operative
documents will have been authorized by all necessary corporate action and
compliance by the Depositor with the provisions of this Agreement; the Offered
Certificates and the Trust Agreement will not conflict with, or constitute a
default under, any material agreement, indenture or instrument, or result in a
violation of the corporate charter or by-laws of the Depositor or any order,
rule or regulation of any court or governmental agency having jurisdiction
over the Depositor or its properties; and, except as required by the Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
applicable state securities laws, no consent, authorization or order of, or
filing or registration with, any court or governmental agency is required for
the execution, delivery and performance of this Agreement and each of the
Trust Agreement;
(d) Except as described in the Registration Statement and the
Prospectus, there has not been any material adverse change or any adverse
development that materially affects the Depositor from the dates as of which
information is given in the Registration Statement and the Prospectus;
(e) The Trust Agreement has been duly and validly authorized,
executed and delivered by the Depositor and is a valid and legally binding
obligation of the Depositor enforceable against the Depositor in accordance
with each of its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting the enforcement of creditors
rights generally or by general principles of equity; and on the Closing Date,
(i) the Offered Certificates will have been validly authorized and, upon
payment therefor as provided in this Agreement, will be validly issued and
outstanding, and will constitute legally binding obligations of the Depositor
entitled to the benefits of the Trust Agreement relating to the Offered
Certificates and (ii) the Offered Certificates, the Trust Agreement and other
operative documents will conform to the descriptions thereof contained in the
Prospectus;
(f) The Depositor has been duly incorporated, is validly
existing and in good standing under the laws of the State of Delaware and is
duly qualified to do business and is in good standing as a foreign corporation
in each jurisdiction in which its ownership of property or the conduct of its
business requires such qualification and has all corporate power and authority
necessary to own or hold its properties and to conduct the business in which
it is engaged, except such jurisdictions, if any, in which the failure to be
so qualified will not have a material adverse effect on its business or
properties;
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(g) Except as described in the Prospectus, there is no
litigation or governmental proceeding pending or, to the knowledge of the
Depositor, threatened against the Depositor that might result in any material
adverse change in the financial condition, results of operation, business or
prospects of the Depositor or that is required to be disclosed in the
Registration Statement;
(h) There are no contracts or other documents that are required
to be filed as exhibits to the Registration Statement by the Act or by the
Rules and that have not been filed as exhibits to the Registration Statement
or incorporated therein by reference as permitted by the Rules and
Regulations, or that are required to be summarized in the Prospectus that are
not so summarized; provided, however, that the Depositor makes no
representation or warranty with respect to any contract or document, except
this Agreement, to which any Underwriter is a party;
(i) The Trust is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended, or under the
control of an investment company;
(j) At the Closing Date, the Offered Certificates will have
been rated by a nationally recognized statistical rating agency (as such term
is used in Rule 15c3-1 under the Exchange Act) in the certificate rating
categories as described in the Prospectus relating to the Offered
Certificates.
(k) This Agreement has been duly authorized, executed and
delivered by the Depositor;
(l) All approvals, authorizations, consents, orders or other
actions of any person, corporation or other organization, or of any court,
governmental agency or body or official (except with respect to the state
securities or Blue Sky laws of various jurisdictions), required in connection
with the valid authorization, issuance and sale of the Certificates pursuant
to this Agreement, and the Trust Agreement has been or will be taken or
obtained on or prior to the Closing Date specified in the Trust Agreement;
(m) At the applicable Closing Date, any assets included in the
related Trust will meet the criteria for selection described in the
Prospectus;
(n) At the applicable Closing Date, the representations and
warranties made by the Depositor in the Trust Agreement will be true and
correct;
(o) At the time of the execution and delivery of the Trust
Agreement, the Depositor will be the beneficial owner of the Primary Assets
being transferred to the Trustee pursuant thereto, free and clear of any lien
or other encumbrance, and will not have assigned to any person any of its
right, title or interest in the Primary Assets or in the Trust Agreement or
the Offered Certificates being issued pursuant thereto; and
(p) At the time of the execution and delivery of the Trust
Agreement, the Depositor will have the power and authority to transfer the
Primary Assets to the Trust and to transfer the Offered Certificates to the
Underwriter and, upon execution and delivery to the Trustee of the Trust
Agreement and delivery to the Underwriter of the Offered Certificates, the
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Primary Assets constituting a portion of the Trust will have been duly and
validly assigned to the Trust in accordance with the terms of the Trust
Agreement.
SECTION 2. Purchase and Sale. The obligation of the Underwriter to
purchase, and the Trust to sell, the Offered Certificates is subject to the
execution and delivery of the Underwriting Agreement, completed so as to
specify the firm that will be the Underwriter (and the representation of the
Underwriters, if more than one), the principal or notional amount, as
applicable, of the Offered Certificates to be purchased by the Underwriter,
the purchase price to be paid by the Underwriter for the Offered Certificates,
the public offering price of the Offered Certificates, certain terms thereof
and the Underwriter's compensation therefor and any terms of the Offered
Certificates not already specified in the Trust Agreement (including, but not
limited to, designations, denominations, interest rates and final scheduled
distribution dates). The Underwriting Agreement will specify any details of
the terms of the offering of Offered Certificates that, pursuant to the Rules
and Regulations, should be reflected in a post-effective amendment to the
Registration Statement or a Prospectus Supplement relating to the offering of
the Offered Certificates.
SECTION 3. Obligation to Deliver. The Trust shall not be obligated
to deliver any of the Offered Certificates except upon payment for all the
Offered Certificates to be purchased pursuant to this Agreement as hereinafter
provided.
SECTION 4. Closing. (a) Payment for the Offered Certificates shall
be made at the location set forth in the Underwriting Agreement, by 11:00 A.M.
New York City time, on the [fifth] business day following the date of the
Underwriting Agreement, or at such other location, time and date as shall be
agreed upon in the Underwriting Agreement or otherwise. This date and time are
sometimes referred to as the "Closing Date;"
(b) The Offered Certificates, in definitive form, duly executed
and authenticated, shall at the direction of the Underwriter be delivered by
the Depositor, for safekeeping, against delivery of a safekeeping receipt, to
the Underwriter at the offices of the Underwriter in New York, New York, on
the second business day prior to the Closing Date, registered in such names and
denominations as the Underwriter shall request in writing at least four
business days prior to the Closing Date. Upon notice given to the Depositor at
least four business days prior to the Closing Date, the Depositor shall not
deliver the Offered Certificates to the Underwriter for safekeeping on the
business day prior to the Closing Date, but shall instead deliver the Offered
Certificates to the Underwriter on the Closing Date for the account of the
Underwriter against payment to or upon the order of the Depositor of the
purchase price in Federal Reserve or other immediately available funds. Such
Offered Certificates shall be made available for checking and packaging by the
Underwriter not less than two business days prior to the Closing Date at such
place in New York, New York, as the Underwriter and the Depositor may agree.
Time shall be of the essence, and delivery at the times and places specified
pursuant to this Agreement is a further condition of the obligation of the
Underwriter hereunder; and
(c) Notwithstanding the foregoing, if the Certificates are to
be delivered through the facilities of The Depository Trust Company, the
Certificates shall be registered in the name of Cede & Co. and delivered
pursuant to separate instructions from the Underwriter to the Depositor.
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SECTION 5. Covenants of the Depositor. The Depositor agrees:
(a) To furnish promptly to the Underwriter and to counsel for
the Underwriter one signed copy of the Registration Statement as originally
filed with the Commission, and each amendment or supplement thereto filed
prior to the date of the Underwriting Agreement or relating to or covering the
Offered Certificates, and a copy of each Prospectus filed with the Commission,
including all consents and exhibits filed therewith;
(b) To deliver promptly to the Underwriter such number of
conformed copies of the Registration Statement (excluding exhibits other than
this Agreement) and each Prospectus as the Underwriter may reasonably request;
(c) To file promptly with the Commission, during such period
following the date of the Underwriting Agreement in which any Prospectus is
required by law to be delivered, any amendment or supplement to the
Registration Statement or any Prospectus that may, in the judgment of the
Depositor or the Underwriter, be required by the Act or requested by the
Commission and approved by the Underwriter;
(d) Prior to filing with the Commission during the period
referred to in (c) above any amendment or supplement to the Registration
Statement or any Prospectus, to furnish a copy thereof to the Underwriter and
to counsel for the Underwriter, and the Depositor shall not file any such
amendment or supplement to which the Underwriter shall reasonably object;
(e) To advise the Underwriter promptly (i) when any
post-effective amendment to the Registration Statement relating to or covering
the Offered Certificates becomes effective, (ii) of any request or proposed
request by the Commission for an amendment or supplement to the Registration
Statement or to any Prospectus (insofar as the amendment or supplement relates
to or covers the Offered Certificates) or for any additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order directed to any
Prospectus or the initiation or threat of any such stop order proceeding, (iv)
of receipt by the Depositor of any notification with respect to the suspension
of the qualification of the Offered Certificates for sale in any jurisdiction
or the initiation or threat of any Proceeding for that purpose and (v) of the
happening of any event that makes untrue any statement of a material fact made
in the Registration Statement or any Prospectus or that requires the making of
a change in the Registration Statement or any Prospectus in order to make any
material statement therein not misleading;
(f) If, during the period referred to in (c) above, the
Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the lifting
of that order at the earliest possible time;
(g) To make generally available to the holders of the
Certificates (the "Certificateholders"), as soon as practicable, an earnings
statement conforming with requirements of Section 11(a) of the Act and Rule
158 thereunder;
(h) To endeavor to qualify the Offered Certificates for offer
and sale under the securities laws of such jurisdictions as the Underwriter
may reasonably request,
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provided, however, that this Section 5(h) shall not obligate the Depositor or
the Trust to file any general consent to service of process or to qualify to
do business in any jurisdiction where they are now not qualified or as dealers
in securities in any jurisdiction in which they are not so qualified;
(i) To pay or cause to be paid (i) the costs incident in the
preparation, printing and filing under the Act of the Registration Statement
and any amendments thereof and supplements and exhibits thereto, (ii) the
costs of distributing the Registration Statement as originally filed and each
amendment and post-effective amendment thereof (including exhibits), any
Preliminary Prospectus, each Prospectus and any amendment or supplement to the
Prospectus as provided in this Agreement; (iii) the costs of printing and
distributing this Agreement, the Trust Agreement and other operative
documents; (iv) the costs of filings, if any, with the National Association of
Securities Dealers, Inc.; (v) fees paid to any rating agency in connection
with the rating of the Offered Certificates; (vi) the fees and expenses of
qualifying the Certificates under the securities laws of the several
jurisdiction as provided in Section 5(h) hereof and of preparing and printing,
if so requested by the Underwriter, a Preliminary Blue Sky Survey and Legal
Investment Survey concerning the legality of the Certificates, including the
Offered Certificates, as an investment (including fees and disbursements of
counsel to the Underwriter in connection therewith); and (vii) all other costs
and expenses incident to the performance of the Depositor's obligations under
this Agreement; provided, however, that, except as provided in Section 9, the
Underwriter shall pay their own costs and expenses, including the fees and
expenses of their counsel, any transfer taxes on the Offered Certificates that
they may sell and the expenses of advertising any offering of the Offered
Certificates made by the Underwriter;
(j) To cause the Trustee to appoint a firm of independent
certified public accountants to perform the services and prepare the reports
contemplated by the Series Supplement.
(k) To file or cause the Trustee to file on behalf of the
Trust, on a timely basis, any certifications, documents and any amendments
thereof as may be required to be filed by it pursuant to the Exchange Act; and
(l) To cause the Trustee while the Certificates are outstanding
to:
1. furnish to the Underwriter, as soon as available, copies of all
reports filed with the Commission and copies of each notice
published or mailed to holders of the Offered Certificates pursuant
to the Trust Agreement; and
2. furnish to the Underwriter, such other information with respect
to the Trust or its financial condition or results of operations, as
the Underwriter may reasonably request, including, but not limited
to, information necessary or appropriate to the maintenance of a
secondary market in the Offered Certificates.
SECTION 6. Indemnification and Contribution.
(a) The Depositor shall indemnify and hold harmless, each of
its directors, each of its officers who signed the Registration Statement, the
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Act from and
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against any loss, claim, damage or liability, joint or several, and any action
in respect thereof, to which any such director, officer, Underwriter or
controlling person may become subject, under the Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, the Registration Statement or any Prospectus or
arises out of, or is based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse the Underwriter and
such controlling person for any legal and other expenses reasonably incurred
by the Underwriter or controlling person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action;
provided, however, that the Depositor shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or any Prospectus in reliance upon and in conformity
with written information furnished to the Depositor by the Underwriter
specifically for inclusion therein; and provided further that, as to any
Preliminary Prospectus, this indemnity agreement shall not inure to the
benefit of any Underwriter or any person controlling any Underwriter on
account of any loss, claim, damage, liability or action arising from the sale
of Offered Certificates to any person by that Underwriter if that Underwriter
failed to send or give a copy of the Prospectus, as the same may be amended or
supplemented, to that person within the time required by the Act, and the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in such Preliminary Prospectus was
corrected in such Prospectus, unless such failure resulted from non-compliance
by the Depositor with Section 5(b). The foregoing indemnity is in addition to
any liability that the Depositor may otherwise have to any Underwriter or any
person or entity controlling such Underwriter.
(b) The Underwriter shall indemnify and hold harmless the
Depositor, each of its directors, each of its officers who signed the
Registration Statement, and any person who controls the Depositor within the
meaning of the Act from and against any loss, claim, damage or liability,
joint or several, and any action in respect thereof, to which the Depositor or
any such director, officer or controlling person may become subject, under the
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or any Prospectus, or arises out of, or is based upon,
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Depositor by the
Underwriter specifically for inclusion therein, and shall reimburse the
Depositor for any legal and other expenses reasonably incurred by the
Depositor or any such director, officer or controlling person defending or
preparing to defend against any such loss, claim, damage, liability or action.
The foregoing indemnity agreement is in addition to any liability that any
Underwriter may otherwise have to the Depositor or any of its directors,
officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this clause, notify the indemnifying party in
writing of the claim or commencement of that action, provided that the
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failure to notify the indemnifying party shall not relieve it from any
liability that it may have to an indemnified party otherwise than under this
Section. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
clause for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof; provided that the
Underwriter shall have the right to employ counsel to represent the
Underwriter, if (i) in the reasonable judgment of the Underwriter, there may
be legal defenses available to the Underwriter different from or in addition
to those available to the Depositor, or there is a conflict of interest
between the Underwriter, on one hand, and the Depositor, on the other, or (ii)
the Depositor shall fail to select counsel, and in such event the fees and
expenses of such separate counsel shall be paid by the Depositor. In no event
shall the Depositor be liable for the fees and expenses of more than one
separate firm of attorneys for the Underwriter and the controlling persons in
connection with any other action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
(d) If the indemnification provided for in this Section 6 shall
for any reason be unavailable to an indemnified party under Section 6(a) or
6(b) hereof in respect of any loss, claim, damage or liability, or any action
in respect thereof, referred to therein, then each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the amount paid
or payable by such indemnified party as a result of such loss, claim, damage
or liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Depositor on the
one hand and the Underwriter on the other from the offering of the Offered
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Depositor on the one hand and the Underwriter on the
other with respect to the statements or omissions that resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Depositor on the one hand and the Underwriter on the other with respect to
such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Offered Certificates (before deducting
expenses) received by the Depositor bear to the total underwriting discounts
and commissions received by the Underwriter with respect to such offering, in
each case as set forth in the table on the cover page of the Prospectus
Supplement. The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Depositor or the Underwriter, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Depositor and the Underwriter agree that it would
not be just and equitable if contributions pursuant to this Section 6(d) were
to be determined by pro rata allocation (even if several underwriters
represented by the Underwriter were treated as one entity for such purpose) or
by any other method of allocation that does not take into account the
equitable considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 6(d) shall be
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deemed to include, for purposes of this Section 6(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Offered Certificates underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriter's obligations to contribute
as provided in this Section 6(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The indemnity agreements contained in this Section and the
representations, warranties and agreements of the Depositor in Section 1 and
Section 5 hereof, shall survive the delivery of the Offered Certificates, and
the provisions of this Section and of Section 5(j) shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement or
any investigation made by or on behalf of any indemnified party.
SECTION 7. Conditions to Underwriter's Obligations. The obligations
of the Underwriter under this Agreement may be terminated by the Underwriter,
in its absolute discretion by notice given to and received by the Depositor
prior to the delivery of and payment for the Offered Certificates, if, during
the period beginning on the date of this Agreement to and including the
Closing Date, (a) trading in securities generally on the New York Stock
Exchange, Inc., the American Stock Exchange or the over-the-counter market is
suspended or minimum prices are established on either of such exchanges or
such market by the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction, or (b) a banking
moratorium is declared by Federal or New York State authorities, or (c) the
United States shall have become engaged in hostilities, there shall have been
an escalation of hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States, or (d)
any rating of the Offered Certificates shall be lowered by the nationally
recognized statistical rating agency (as such term is used in Rule 15c3-1
under the Exchange Act) that initially rated the Certificates, or (e) there
shall have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international conditions
on the financial markets of the United States shall be such) as to make it in
each of the instances set forth in clauses (a), (b), (c), (d) and (e) herein,
in the sole discretion of the Underwriters, impractical or inadvisable to
proceed with the public offering or delivery of the Offered Certificates on
the terms and in the manner contemplated in the Prospectus.
SECTION 8. Additional Conditions to Underwriter's Obligations. The
obligations of the Underwriter under this Agreement with respect to the
Offered Certificates are subject to the accuracy, on the date of this
Agreement and on the Closing Date, of the representations and warranties of
the Depositor contained herein, to the performance by the Depositor of its
obligations hereunder, and to each of the following additional terms and
conditions applicable to the Offered Certificates:
(a) At or before the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued, and prior
to that time no stop
9
order proceeding shall have been initiated or threatened by the Commission;
any request of the Commission for inclusion of additional information in the
Registration Statement or any Prospectus or otherwise shall have been complied
with; and after the date of this Agreement the Depositor shall not have filed
with the Commission any amendment or supplement to the Registration Statement
or any Prospectus to which the Underwriter shall have reasonably objected;
(b) The Underwriter shall not have discovered and disclosed to
the Depositor on or prior to the Closing Date that the Registration Statement
or any Prospectus contains an untrue statement of a fact that, in the opinion
of counsel to the Underwriter, is material or omits to state a fact that, in
the opinion of such counsel, is material and is required to be stated therein
or is necessary to make the statements therein not misleading;
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Offered
Certificates, the Trust Agreement, other operative documents and the form of
the Registration Statement, each Prospectus (other than financial statements
and other financial data, if any) and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all respects to Sidley Xxxxxx Xxxxx & Xxxx LLP as counsel for
the Underwriter and the Depositor, and the Depositor shall have furnished to
such counsel all documents and information that they may reasonably request to
enable them to pass upon such matters;
(d) Counsel to the Depositor shall have furnished to the
Underwriter their opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriter;
(e) Counsel to the Trustee shall have furnished to the
Underwriter their opinion, dated as of the applicable Closing Date, in form
and substance satisfactory to the Underwriter;
(f) The Underwriter shall have received such opinion or
opinions, dated the Closing Date, with respect to the incorporation of the
Depositor, the validity of the Registration Statement, the Prospectus and
other related matters as the Underwriter may require, and the Depositor shall
have furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters;
(g) The Underwriter shall have received a certificate or
certificates signed by such of the principal executive, financial and
accounting officers of the Depositor as the Underwriter may request, dated the
applicable Closing Date, in which such officers, to the best of their
knowledge after reasonable investigation, shall state that (i) the
representations and warranties of the Depositor in this Agreement are true and
correct; (ii) the Depositor has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Date; (iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated; (iv) subsequent to the respective dates as of
which information is given in the Prospectus, and except as set forth or
contemplated in the Prospectus, there has not been any material adverse change
in the general affairs of the Depositor; (v) except as otherwise stated in the
Prospectus, there are no material actions, suits or proceedings pending before
any court or
10
governmental agency, authority or body or, to their knowledge, threatened,
which could have a material effect upon the Depositor or upon the transactions
contemplated by this Agreement; and (vi) attached thereto are true and correct
copies of a letter from the rating agency or agencies rating the Certificates
subject to this Agreement confirming that, unless otherwise specified in the
applicable Underwriting Agreement that the Certificates have been rated in the
same rating categories established by such agency or agencies as the rating of
the Underlying Securities and that such rating has not been lowered since the
date of such letter;
(h) If applicable, the Underwriter shall have received letters
dated the Closing Date from counsel rendering opinions to any nationally
recognized statistical rating organization rating the Certificates, to the
effect that the Underwriter may rely upon their opinion to such rating
organization, as if such opinion were rendered to the Underwriter;
(i) The Underwriter shall have received a certificate of the
Trustee, signed by one or more duly authorized officers of the Trustee, dated
the applicable Closing Date, as to the due acceptance of the Trust Agreement
by the Trustee and the due authorization and delivery of the Certificates by
the Trustee thereunder; and
(j) The Depositor will furnish the Underwriter with such
conformed copies of such opinions, certificates, letters and documents as the
Underwriter reasonably requests.
All opinions, letters, evidence and certificates mentioned above or elsewhere
in this Agreement shall be deemed to be in compliance with the provisions
hereof only if they are in form and substance satisfactory to counsel for the
Underwriter.
SECTION 9. Reimbursement of Underwriter. If the sale of the Offered
Certificates shall not be consummated because any condition to the
Underwriter's obligations set forth in Section 7 or Section 8 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Depositor to perform any agreement herein or comply with any provision hereof
other than by reason of default of the Underwriter, the Depositor shall
reimburse the Underwriter for the reasonable fees and expenses of their
counsel and for such other out-of-pocket expenses as shall have been incurred
in connection with this Agreement and the proposed purchase of the Offered
Certificates and, upon demand the Depositor shall pay the full amount thereof
to the Underwriter.
SECTION 10. Notices. The Depositor shall be entitled to act and rely
upon any request, consent, notice or agreement by ABN AMRO Incorporated as, or
on behalf of, the Underwriter. Any notice by the Depositor to the Underwriter
shall be sufficient if given in writing or in writing by an electronic
facsimile addressed to ABN AMRO Incorporated, Park Avenue Plaza, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of the Legal Department, and any
notice by the Underwriter to the Depositor shall be sufficient if given in
writing addressed to the Depositor at Park Avenue Plaza, 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of the Secretary.
This Underwriting Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Depositor and their respective
successors. This Underwriting Agreement and the terms and provisions hereof
are for the sole benefit of only those persons,
11
except that the representations, warranties, indemnities and agreements
contained in this Underwriting Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control the Underwriters within
the meaning of Section 15 of the Securities Act, and for the benefit of
directors of the Depositor, officers of the Depositor who have signed the
Registration Statement and any person controlling the Depositor within the
meaning of Section 15 of the Securities Act. Nothing in this Underwriting
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 11, any legal or equitable right, remedy
or claim under or in respect of this Underwriting Agreement or any provision
contained herein.
SECTION 11. Definition of the Term "Business Day". For purposes of
this Agreement, "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading.
SECTION 12. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS
AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS
OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
The parties hereto hereby submit to the jurisdiction of the United
States District Court for the Southern District of New York and any court in
the State of New York located in the City and County of New York, and
appellate court from any thereof, in any action, suit or proceeding brought
against it or in connection with this Underwriting Agreement or any of the
related documents or the transactions contemplated hereunder or for
recognition or enforcement of any judgment, and the parties hereto hereby
agree that all claims in respect of any such action or proceeding may be heard
or determined in New York State court or, to the extent permitted by law, in
such federal court.
SECTION 13. Counterparts. This Agreement may be executed in one or
more counterparts, and, if executed in more than one counterpart, the executed
counterparts shall together constitute a single instrument.
SECTION 14. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Underwriting Agreement.
12
Schedule I
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Number of Certificates
Underwriter To be Purchased
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ABN AMRO Incorporated [o]
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[ABN AMRO Financial Securities, Inc.] [o]
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Total [o]
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