Exhibit 1.1
BEAR XXXXXXX TRUST CERTIFICATES
SERIES 200_-[ ] TRUST
UNDERWRITING AGREEMENT
[ ], 200_
BEAR, XXXXXXX & CO. INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[UNDERWRITER]
[address]
[city, state, zip code]
Ladies and Gentlemen:
Bear Xxxxxxx 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"). Bear Xxxxxxx & Co.
Inc. and [ _________________ ] (each an "Underwriter" and together the
"Underwriters") pursuant to this agreement (the "Underwriting Agreement" or
"this Agreement") are purchasing the Certificates set forth next to their
respective names at the prices set forth on Schedule A hereto, except that the
amount purchased by each Underwriter may change in accordance with Section 10
of this Underwriting Agreement.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in the Trust Agreement. This Underwriting Agreement
and the Trust Agreement are referred to together herein as the "Operative
Agreements".
SECTION 1. Representations and Warranties of the Depositor. The Depositor
represents and warrants to, and agrees with each of you that:
(a) A Registration Statement on Form S-3 (No. 333-58504) with
respect to the Certificates has (i) been prepared by the Depositor in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations (the "Rules
and Regulations") of the United States Securities and Exchange Commission
(the "Commission") thereunder, (ii) been filed with the Commission under
the Securities Act and (iii) become effective under the Securities Act.
Copies of such Registration Statement have been delivered by the
Depositor to the Underwriters. As used in this Underwriting Agreement,
"Effective Time" means the date and the time as of which such
Registration Statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time; "Registration Statement"
means such registration statement, at the Effective Time, including any
documents incorporated by reference therein at such time; and
"Prospectus" means the final prospectus dated [ ], 200_, as supplemented
by the final prospectus supplement dated [ ], 200_ (the "Prospectus
Supplement") relating to the Certificates, to be filed with the
Commission pursuant to paragraphs (2), (3) or (5) of Rule 424(b) of the
Rules and Regulations. Reference made herein to the Prospectus shall be
deemed to refer to and include any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act as of
the date of the Prospectus and any reference to any amendment or
supplement to the Prospectus shall be deemed to refer to and include any
document filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date of such Prospectus, as the case may be,
and incorporated by reference in such Prospectus, as the case may be, and
any reference to any amendment to the Registration Statement shall be
deemed to include any report of the Depositor filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Time that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or
suspending the use of the Prospectus. There are no contracts or documents
of the Depositor which are required to be filed as exhibits to the
Registration Statement pursuant to the Securities Act or the Rules and
Regulations which have not been so filed or incorporated by reference
therein on or prior to the Effective Date of the Registration Statement.
The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the Securities Act and the Rules and Regulations. The
Registration Statement, as of the Effective Date thereof and of any
amendment thereto, did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus
as of its date, and as amended or supplemented 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 in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that no representation or warranty is
made 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 in writing by any
Underwriter expressly for use therein. The only information furnished by
the Underwriters or on behalf of the Underwriters for use in connection
with the preparation of the Registration Statement or the Prospectus is
described in Section 8(e) hereof.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the Rules and
Regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(d) Since the respective dates as of which information is given in
the Prospectus, there has not been any material adverse change in the
general affairs, management, financial condition, or results of
operations of the Depositor, otherwise than as set forth or contemplated
in the Prospectus as supplemented or amended as of the Closing Date.
(e) The Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease
of property or the conduct of its business requires such qualification,
and has all power and authority necessary to own or hold its properties,
to conduct the business in which it is engaged and to enter into and
perform its obligations under the Operative Agreements to which it is a
party and to cause the Certificates to be issued.
(f) There are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before, or
threatened by, any court, administrative agency or other tribunal to
which the Depositor is a party or of which any of its properties is the
subject (i) which if determined adversely to the Depositor would have a
material adverse effect on the business or financial condition of the
Depositor, (ii) which assert the invalidity of any of the Operative
Agreements to which it is a party or the Certificates, (iii) which seek
to prevent the issuance of the Certificates or the consummation by the
Depositor of any of the transactions contemplated by any of the Operative
Agreements to which it is a party or (iv) which might materially and
adversely affect the performance by the Depositor of its obligations
under, or the validity or enforceability of any of the Operative
Agreements to which it is a party or the Certificates.
(g) This Underwriting Agreement has been, and the Trust Agreement
when executed and delivered as contemplated hereby and thereby, will have
been, duly authorized, executed and delivered by the Depositor, and this
Underwriting Agreement constitutes, and the Trust Agreement when executed
and delivered as contemplated herein, will constitute, legal, valid and
binding instruments enforceable against the Depositor in accordance with
their respective terms, subject as to enforceability to (i) applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally, (ii) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law), and (iii) with respect to rights of indemnity under this
Underwriting Agreement and the Trust Agreement, limitations of public
policy under applicable securities laws.
(h) The execution, delivery and performance by the Depositor of the
Operative Agreements to which it is a party and the consummation of the
transactions contemplated hereby and thereby, and the issuance and
delivery of the Certificates do not and will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is a
party, by which the Depositor is bound or to which any of the properties
or assets of the Depositor or any of its subsidiaries is subject, which
breach or violation would have a material adverse effect on the business,
operations or financial condition of the Depositor, nor will such actions
result in any violation of the provisions of the Certificate of
Incorporation or By-Laws of the Depositor or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Depositor or any of its properties or assets, which
breach or violation would have a material adverse effect on the business,
operations or financial condition of the Depositor.
(i) When the Certificates are duly and validly executed and
authenticated by the Trustee and delivered in accordance with the Trust
Agreement, the Certificates will be duly and validly issued and
outstanding and entitled to the benefits and security afforded by the
Trust Agreement.
(j) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States is required for the issuance of the Certificates and the
sale of the Certificates to the Underwriters, or the consummation by the
Depositor of the other transactions contemplated by the Operative
Agreements, except 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 or as have been obtained.
(k) The Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business
now conducted by it and as described in the Prospectus, and the Depositor
has not received notice of any proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which
if decided adversely to the Depositor would, singly or in the aggregate,
materially and adversely affect the conduct of its business, operations
or financial condition.
(l) At the time of execution and delivery of the Trust Agreement,
the Depositor will: (i) be the sole beneficial owner of the Primary
Assets being transferred to the Trustee pursuant thereto, free and clear
of any lien, mortgage, pledge, charge, encumbrance, adverse claim or
other security interest (collectively, "Liens"); (ii) not have assigned
to any Person any of its right or title in the Primary Assets, in the
Trust Agreement or in the Certificates being issued; and (iii) have the
power and authority to sell its interest in the Primary Assets to the
Trust and to sell the Certificates to the Underwriters. Upon execution
and delivery of the Trust Agreement by the Trustee, the Trust will have
acquired beneficial ownership of all of the Depositor's right, title and
interest in and to the Primary Assets. Upon delivery to the Underwriters
of the Certificates, the Underwriters will have good title to the
Certificates, free and clear of any Liens.
(m) As of the Closing Date, the Primary Assets included in the
related Trust will meet the eligibility criteria described in the
Prospectus and will conform in all material respects to the descriptions
thereof contained in the Prospectus.
(n) Neither the Depositor nor the Trust created by the Trust
Agreement is an "investment company" within the meaning of such term
under the Investment Company Act of 1940 (the "1940 Act") and the Rules
and Regulations of the Commission thereunder.
(o) At the Closing Date, the Certificates and the Trust Agreement
will conform in all material respects to the descriptions thereof
contained in the Prospectus.
(p) At the Closing Date, [the Class [A-1] Certificates will have
been rated ["Aaa"] by Xxxxx'x Investors Service, Inc. ("Moody's"),
["AAA"] by Standard & Poor's. a division of The XxXxxx-Xxxx Companies,
Inc. ("S&P") and ["AAA"] by Fitch, Inc. ("Fitch", and together with
Moody's and S&P, the "Rating Agencies").] At the Closing Date, [the Class
[A-2] Certificates will have been rated ["AA"] by S&P, ["Aa2"] by Moody's
and ["AA"] by Fitch, and the Class [A-2] Certificates will have been
rated ["A"] by S&P, ["A2"] by Moody's and ["A"] by Fitch.]
(q) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of the Operative Agreements and
the Certificates have been paid or will be paid at or prior to the
Closing Date.
(r) At the Closing Date, each of the representations and warranties
of the Depositor set forth in the Trust Agreement will be true and
correct in all material respects.
Any certificate signed by an officer of the Depositor and delivered to
the Underwriters or counsel for the Underwriters in connection with an
offering of the Certificates shall be deemed to be a representation and
warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section 1 are made.
SECTION 2. Purchase and Sale. The commitment of the Underwriters to
purchase the Certificates pursuant to this Underwriting Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth. The Depositor agrees to instruct the Trustee to issue the Certificates
and agrees to sell to the Underwriters, and the Underwriters severally agree
(except as provided in Sections 10 and 11) to purchase from the Depositor, the
aggregate principal amount of the Certificates at the purchase price or prices
set forth next to their respective names in Schedule A, except that the amount
purchased by each Underwriter may change in accordance with Section 10 of this
Underwriting Agreement.
SECTION 3. Delivery and Payment. Delivery of and payment for the
Certificates to be purchased by the Underwriters shall be made at the offices
of Xxxxx & Xxxx LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at
such other place as shall be agreed upon by the Underwriters and the Depositor
at 10:00 a.m., New York time on [ _________ ], 200_, or at such other time or
date as shall be agreed upon in writing by the Underwriters and the Depositor
(such date being referred to as the "Closing Date"). Payment shall be made to
the Depositor by wire transfer of same day funds payable to the account of the
Depositor. Delivery of the Certificates shall be made to the Underwriters for
the accounts of the Underwriters against payment of the purchase price
thereof. The Certificates shall be in such authorized denominations and
registered in such names as the Underwriters may request in writing at least
two business days prior to the Closing Date. The Certificates will be made
available for examination by the Underwriters no later than 2:00 p.m. New York
City time on the first business day prior to the Closing Date.
SECTION 4. Offering by the Underwriters. It is understood that, subject
to the terms and conditions hereof, the Underwriters propose to offer the
Certificates for sale to the public as set forth in the Prospectus.
SECTION 5. Covenants of the Depositor. The Depositor agrees as follows:
(a) To prepare the Prospectus in a form approved by the Underwriters
and to file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission's close of business on the second
business day following the availability of the Prospectus to the
Underwriters and to make no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the Closing Date
except as permitted herein; to advise the Underwriters, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective prior to the
Closing Date or any supplement to the Prospectus or any amended
Prospectus has been filed prior to the Closing Date and to furnish the
Underwriters with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Depositor with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and,
for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Certificates to advise the Underwriters
promptly of its receipt of notice of the issuance by the Commission of
any stop order or of: (i) any order preventing or suspending the use of
the Prospectus; (ii) the suspension of the qualification of the
Certificates for offering or sale in any jurisdiction; (iii) the
initiation of or threat of any proceeding for any such purpose; (iv) any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information.
In the event of the issuance of any stop order or of any order preventing
or suspending the use of the Prospectus or suspending any such
qualification, the Depositor promptly shall use its best efforts to
obtain the withdrawal of such order by the Commission.
(b) To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and of each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith.
(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case including
exhibits); (ii) the Prospectus and any amended or supplemented
Prospectus; and (iii) any document incorporated by reference in the
Prospectus (including exhibits thereto). If the delivery of a prospectus
is required at any time in connection with the offering or sale of the
Certificates, and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during the same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Securities Act or the Exchange
Act, the Depositor shall notify the Underwriters and, upon the
Underwriters' request, shall file such document and prepare and furnish
without charge to the Underwriters and to any dealer in securities as
many copies as the Underwriters may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which corrects
such statement or omission or effects such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Depositor or the
Underwriters, be required by the Securities Act or requested by the
Commission.
(e) To furnish the Underwriters and counsel for the Underwriters,
prior to filing with the Commission, and to obtain the consent of the
Underwriters for the filing of the following documents relating to the
Certificates: any (i) amendment to the Registration Statement or
supplement to the Prospectus, or document incorporated by reference in
the Prospectus, or (ii) Prospectus pursuant to Rule 424 of the Rules and
Regulations.
(f) To make generally available to holders of the Certificates as
soon as practicable, but in any event not later than ninety (90) days
after the close of the period covered thereby, a statement of earnings of
the Trust (which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option of
the Depositor, Rule 158) and covering a period of at least twelve (12)
consecutive months beginning not later than the first day of the first
fiscal quarter following the Closing Date.
(g) To use its best efforts, in cooperation with the Underwriters,
to qualify the Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United
States or elsewhere as the Underwriters may designate, and maintain or
cause to be maintained such qualifications in effect for as long as may
be required for the distribution of the Certificates; provided, however,
that in connection therewith, the Depositor shall not be required to
qualify as a foreign corporation or to file a general consent to service
of process in any jurisdiction. The Depositor will file or cause the
filing of such statements and reports as may be required by the laws of
each jurisdiction in which the Certificates have been so qualified.
(h) To file or cause the Trustee to file on behalf of the Trust, on
a timely basis, any documents and any amendments thereof as may be
required to be filed by it pursuant to the Exchange Act.
(i) So long as the Certificates shall be outstanding the Depositor
shall cause the Trustee, pursuant to the Trust Agreement, to deliver to
the Underwriters as soon as such information, documents and reports, as
applicable, are available to be furnished: (i) copies of all reports
filed with the Commission and copies of each notice published or mailed
to any holders of Certificates pursuant to the Trust Agreement, and (ii)
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 any Certificates.
(j) To apply the net proceeds from the sale of the Certificates in
the manner set forth in the Prospectus Supplement.
SECTION 6. Conditions to the Underwriters' Obligations. The obligations
of each Underwriter to purchase the Certificates pursuant to this Underwriting
Agreement are subject to: (i) the accuracy on and as of the Closing Date of
the representations and warranties on the part of the Depositor herein
contained; (ii) the performance by the Depositor of all of its obligations
hereunder; and (iii) the following conditions as of the Closing Date:
(a) The Underwriters shall have received confirmation of the
effectiveness of the Registration Statement. No stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission. Any request of the Commission
for inclusion of additional information in the Registration Statement or
the Prospectus shall have been complied with.
(b) Neither Underwriter shall have discovered and disclosed to the
Depositor on or prior to the Closing Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact or omits to state a fact which, in the opinion
of such Underwriter and its 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 relating to
the authorization, form and validity of the Operative Agreements, the
Certificates, the Registration Statement and the Prospectus, and all
other legal matters relating to this Underwriting Agreement and the
transactions contemplated hereby shall be satisfactory in all respects to
the Underwriters and their counsel, and the Depositor shall have
furnished to Underwriter and their counsel all documents and information
that they may reasonably request to enable them to pass upon such
matters.
(d) Xxxxx & Wood LLP, counsel to the Depositor, shall have furnished
to the Underwriters their written opinion, addressed to the Underwriters
and dated the Closing Date, in form and substance satisfactory to the
Underwriters.
(e) [ ________________ ], counsel to the Trustee, shall have
furnished to the Underwriters their written opinion, addressed to the
Underwriters and dated as of the applicable Closing Date, in form and
substance satisfactory to the Underwriters.
(f) [ ________________ ], in-house counsel to the Depositor, shall
have furnished to the Underwriters [his][her] written opinion, addressed
to the Underwriters and dated as of the applicable Closing Date, in form
and substance satisfactory to the Underwriters.
(g) If applicable, the Underwriters shall have received letters
dated the Closing Date from counsel rendering opinions to any Rating
Agency rating the Certificates, to the effect that the Underwriters may
rely upon their opinion to such Rating Agency, as if such opinion were
rendered to the Underwriters.
(h) The Underwriters 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 Underwriters 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.
(i) The Underwriters shall have received a certificate or
certificates signed by such of the principal executive, financial and
accounting officers of the Depositor as the Underwriters may request,
dated the applicable Closing Date, in which such officers, to the best of
their knowledge after reasonable investigation, shall state that (i) the
representations and warranties of the Depositor in this Agreement are
true and correct; (ii) the Depositor has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Date; (iii) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated;
(iv) subsequent to the respective dates as of which information is given
in the Prospectus, and except as set forth or contemplated in the
Prospectus, there has not been any material adverse change in the general
affairs, capitalization, financial condition or results of operations of
the Depositor; (v) except as otherwise stated in the Prospectus, there
are no material actions, suits or proceedings pending before any court or
governmental agency, authority or body or, to their knowledge,
threatened, which could have a material effect upon the Depositor or upon
the transactions contemplated by this Agreement; and (vi) attached
thereto are true and correct copies of a letter from the rating agency or
agencies rating the Certificates 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.
(j) The Trustee shall have furnished to the Underwriters a
certificate of the Trustee, signed by one or more duly authorized
officers of the Trustee, dated the Closing Date, as to the due
authorization, execution and delivery of the Trust Agreement by the
Trustee and the due execution, authentication and delivery of the
Certificates by the Trustee thereunder.
(k) The Depositor shall have furnished to the Underwriters such
further information, certificates and documents as the Underwriters may
reasonably have requested not less than three full business days prior to
the Closing Date.
(l) Subsequent to the execution and delivery of this Underwriting
Agreement, none of the following shall have occurred: (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been suspended or
minimum prices shall have been 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; (ii) a
banking moratorium shall have been declared by federal or state
authorities; (iii) 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 (iv) 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 (i), (ii), (iii) and (iv)
herein, in the judgment of the Underwriters, impractical or inadvisable
to proceed with the public offering or delivery of the Certificates on
the terms and in the manner contemplated in the Prospectus.
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Underwriting Agreement
may be terminated by the Underwriters by notice to the Depositor at any time
at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Section 7.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Underwriting Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
SECTION 7. Payment of Expenses. As between the Depositor and the
Underwriters, the [Depositor] agrees to pay all expenses incident to the
performance of its obligations under this Agreement, including without
limitation those relating to: (a) the costs incident to the authorization,
issuance, sale and delivery of the Certificates and any taxes payable in
connection therewith; (b) a portion of the fees previously paid to the
Commission with respect to the filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs
of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), the Prospectus and any amendment or supplement to the
Prospectus (including the Prospectus Supplement) or any document incorporated
by reference therein, all as provided in this Underwriting Agreement; (d) the
costs of reproducing and distributing this Underwriting Agreement; (e) the
fees and expenses of qualifying the Certificates under the securities laws of
the several jurisdictions as provided in Section 5(h), if necessary, hereof
and of preparing, printing and distributing a Blue Sky Memorandum and a Legal
Investment Survey (including related fees and expenses of counsel to the
Underwriters); (f) any fees charged by securities rating services for rating
the Certificates; and (g) all other costs and expenses incident to the
performance of the obligations of the Depositor (including costs and expenses
of your counsel).
If this Underwriting Agreement is terminated by the Underwriters in
accordance with the provisions of Section 6 or Section 11, the Depositor shall
cause the Underwriters to be reimbursed for all reasonable out-of-pocket
expenses, including fees and disbursements of Xxxxx & Xxxx LLP, counsel for
the Underwriters.
SECTION 8. Indemnification and Contribution. (a) The Depositor agrees
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Securities
Act from and against any and all loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
the Certificates), to which such Underwriter or any such controlling person
may become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, or any amendment thereof or supplement thereto,
(ii) the omission or alleged omission to state in the Registration Statement
or any amendment thereof or supplement thereto a material fact required to be
stated therein or necessary to make the statements therein not misleading,
(iii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus, or any amendment thereof or supplement thereto,
or (iv) the omission or alleged omission to state in the Prospectus or any
amendment thereof or supplement thereto a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and shall reimburse
each Underwriter and each such controlling person promptly upon demand for any
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Depositor shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in the
Prospectus, or any amendment thereof or supplement thereto, or the
Registration Statement, or any amendment thereof or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Depositor by or on behalf of such Underwriter specifically for inclusion
therein, it being understood that the only information furnished by Bear,
Xxxxxxx & Co. Inc. or [other underwriter's name] or on behalf of either such
Underwriter for use in connection with the preparation of the Registration
Statement or the Prospectus is described in Section 8(e) hereof. The foregoing
indemnity agreement is in addition to any liability which the Depositor may
otherwise have to each Underwriter or any controlling person of each
Underwriter.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Depositor, each of their directors, each of the officers of
the Depositor who signed the Registration Statement, and each person, if any,
who controls the Depositor within the meaning of Section 15 of the Securities
Act against any and all loss, claim, damage or liability, or any action in
respect thereof, to which the Depositor or any such director, officer or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment thereof or
supplement thereto, (ii) the omission or alleged omission to state in the
Registration Statement or any amendment thereof or supplement thereto a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus, or any
amendment thereof or supplement thereto, or (iv) the omission or alleged
omission to state in the Prospectus, or any amendment thereof or supplement
thereto a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, 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 or on behalf of such Underwriter specifically for inclusion
therein, and shall reimburse the Depositor and any such director, officer or
controlling person for any legal or other expenses reasonably incurred by the
Depositor or any director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The only
information furnished by Bear, Xxxxxxx & Co. Inc. or [other underwriter's
name] or on behalf of either such Underwriter for use in connection with the
preparation of the Registration Statement or the Prospectus is described in
Section 8(e) hereof. The foregoing indemnity agreement is in addition to any
liability which the Underwriters may otherwise have to the Depositor or any
such director, officer or controlling person.
(c) Promptly after receipt by any indemnified party under this Section 8
of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify any indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 8.
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, except to
the extent provided in the next following paragraph, the indemnifying party
shall not be liable to the indemnified party under this Section 8 for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if
such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of attorneys
(in addition to one local counsel per jurisdiction) at any time for all such
indemnified parties, which firm shall be designated in writing by the
applicable Underwriter, if the indemnified parties under this Section 8
consist of the Underwriters or any of their respective controlling persons, or
the Depositor, if the indemnified parties under this Section 8 consist of the
Depositor or any of the Depositor's directors, officers or controlling
persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 8(a) and (b), shall use its best efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees
to indemnify and hold harmless any indemnified party from and against any loss
or liability by reason of such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than thirty (30)
days after receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Sections 8(a) or (b) 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 and the related Underwriter from the offering of the
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or if the indemnified party failed to give the
notice required under Section 8(c), 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 and the related Underwriter with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations.
The relative benefits of the related Underwriter and the Depositor
shall be deemed to be in such proportion as the total net proceeds from the
offering (before deducting expenses) received by the Depositor bear to the
total underwriting discounts and commissions received by the related
Underwriter from time to time in negotiated sales of the related Certificates.
The relative fault of the related Underwriter and the Depositor 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 by the related
Underwriter, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission
and other equitable considerations.
The Depositor and each of the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purposes) or by any other method of allocation which 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 8(d) shall be deemed to include, for purposes of this Section 8(d),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
For purposes of this Section 8, in no case shall any Underwriter be
responsible for any amount in excess of (x) the amount received by such
Underwriter in connection with its resale of the related Certificates over (y)
the amount paid by such Underwriter to the Depositor for the related
Certificates by such Underwriter hereunder. 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.
(e) Each of the Underwriters confirms that the information set forth
in the Prospectus Supplement under the heading "Method of Distribution" (as
such information relates to such Underwriter) is correct, and the parties
hereto acknowledge that such information constitutes the only information
furnished in writing by or on behalf of each such Underwriter for use in
connection with the preparation of the Registration Statement or the
Prospectus.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Underwriting Agreement or contained in certificates of officers of the
Depositor or the Company submitted pursuant hereto shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of the Underwriters or controlling persons thereof, or by or on behalf of the
Depositor, and shall survive delivery of any Certificates to the Underwriters.
SECTION 10. [Default by One of the Underwriters. If one of the
Underwriters participating in the public offering of the Certificates shall
fail at the Closing Date to purchase the Certificates which it is obligated to
purchase hereunder (the "Defaulted Certificates"), then the non-defaulting
Underwriter shall have the right, within 24 hours thereafter, to purchase all,
but not less than all, of the Defaulted Certificates in such amounts as may be
agreed upon and upon the terms herein set forth. If, however, the
non-defaulting Underwriter has not completed such arrangements within such
24-hour period, then:
(a) if the aggregate principal amount of Defaulted Certificates does
not exceed 10% of the aggregate principal amount of the Certificates to
be purchased pursuant to this Underwriting Agreement, the non-defaulting
Underwriter shall be obligated to purchase the full amount thereof, or
(b) if the aggregate principal amount of Defaulted Certificates
exceeds 10% of the aggregate principal amount of the Certificates to be
purchased pursuant to this Underwriting Agreement, this Underwriting
Agreement shall terminate, without any liability on the part of the
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve a defaulting
Underwriter from the liability with respect to any default of such Underwriter
under this Underwriting Agreement.
In the event of a default by any Underwriter as set forth in this Section
10, the non-defaulting Underwriter and the Depositor shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in
order that any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements may be effected.]
SECTION 11. Termination of this Underwriting Agreement. The
Underwriters may terminate this Underwriting Agreement immediately upon notice
to the Depositor, at any time at or prior to the Closing Date if any of the
events or conditions described in Section 6(l) of this Underwriting Agreement
shall occur and be continuing. In the event of any such termination, the
covenant set forth in Section 5(f), the provisions of Section 7, the indemnity
agreement set forth in Section 8, and the provisions of Sections 9 and 16
shall remain in effect.
SECTION 12. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to Bear, Xxxxxxx & Co. Inc., shall be delivered or sent by
mail, telex or facsimile transmission to Bear, Xxxxxxx & Co. Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Asset Backed Securities
Group (Fax: 000-000-0000).
(b) if to [[other underwriter's name], shall be delivered or sent by
mail, telex or facsimile transmission to care of ,
[address], Attention: [ ] (Fax: [ ])].
(c) if to the Depositor, shall be delivered or sent by mail, telex
or facsimile transmission to care of Bear Xxxxxxx Depositor Inc., 000
Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief
Counsel (Fax: 000-000-0000).
SECTION 13. Persons Entitled to the Benefit of this Underwriting
Agreement. 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, 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 13, any legal or equitable right, remedy or claim
under or in respect of this Underwriting Agreement or any provision contained
herein.
SECTION 14. Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Underwriting Agreement, or made by or on behalf of them, respectively,
pursuant to this Underwriting Agreement shall survive the delivery of and
payment for the Certificates and shall remain in full force and effect,
regardless of any investigation made by or on behalf of any of them or any
person controlling any of them.
SECTION 15. Definition of the Term "Business Day". For purposes of this
Underwriting Agreement, "Business Day" means any day on which the New York
Stock Exchange is open for trading.
SECTION 16. Governing Law; Submission to Jurisdiction. This Underwriting
Agreement shall be governed by and construed in accordance with the laws of
the State of New York without giving effect to the conflict of law rules
thereof.
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 17. Counterparts. This Underwriting Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 18. 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.
* * *
If the foregoing correctly sets forth the agreement between the
Depositor and the Underwriters, please indicate your acceptance in the space
provided for the purpose below.
Very truly yours,
BEAR XXXXXXX DEPOSITOR INC.
By:
-----------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as
of the date first above written:
BEAR, XXXXXXX & CO. INC.
By:
------------------------------
Name:
Title:
[OTHER UNDERWRITER]
By:
-----------------------------
Name:
Title:
Exhibit 1.1
SCHEDULE A
Class A-1 Certificates
Underwriter Original Principal Purchase Price
Balance
Bear, Xxxxxxx & Co. Inc.
[Other Underwriter]
