Exhibit 1.1
Xxxxxx ABS Corporation
[Corporate] [US Government]
[Foreign Government] Bond-Backed Certificates, Series [ ]
[ ], 199[ ]
FORM OF
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UNDERWRITING AGREEMENT
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Xxxxxx ABS Corporation
3 World Financial Center
New York, New York 10285
Dear Sirs:
We [Xxxxxx Brothers Inc.][name of other underwriters](the
"Underwriter[s]") understand that Xxxxxx ABS Corporation, a Delaware corporation
(the "Depositor"), proposes to form one or more trusts (the "Trusts"), which
will issue and sell $[_______] aggregate certificate amount of its [Corporate]
[US Government] [Foreign Government] Bond-Backed Certificates, Series [___] (the
"Certificates"). The Certificates shall have the following terms:
Initial Aggregate Certificate Final Scheduled
Designation [Principal][Notional]Amount Interest Rate Distribution Date
----------- --------------------------- ------------- -----------------
Class [ ] $[ ]1 [ ]% [ ]
Class [ ] $[ ]2 [ ]% [ ]
[list others]
--------
1[Describe distributions]
2[Describe distributions]
This Agreement relates to 100% of the [principal] [notional]
amount of the Class [___] Certificates, [and] 100% of the [principal] [notional]
amount of the Class [ ] Certificates [and] [set forth other Classes of
Certificates] (the "Offered Certificates"). The distribution of the Offered
Certificates will be effected by us from time to time in one or more negotiated
transactions, or otherwise, at varying prices to be determined, in each case, at
the time of sale. 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 "Xxxxxx ABS Corporation -- [Corporate] [US
Government] [Foreign Government] Bond-Backed Certificates -- Underwriting
Agreement Basic Provisions," a copy of which is attached hereto (the "Basic
Provisions"), we will offer the Offered Certificates to the public from time to
time in negotiated transactions or otherwise at varying prices to be determined
at the time of sale.
We will pay for the Offered Certificates upon delivery of such
Certificates at our offices, at [000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000] [addresses of other underwriters], at [10:00 A.M.] (New York City
time) on [_____], 199[ ], or at such other time and place as we shall mutually
agree (the "Closing Date"). The purchase price shall equal [__]% of the
aggregate [principal] [notional] amount of the Offered Certificates, Class [__],
[and] [__]% of the aggregate [principal] [notional] amount of the Offered
Certificates, Class [__] [and] [set forth any other Classes], in each case
[excluding] [including] accrued interest.
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 Series Trust Agreement are used herein as therein
defined.
Please accept this offer by having an authorized officer sign
a copy of this Underwriting Agreement in the space set forth below and returning
the signed copy, or by sending a written acceptance in the following form, to us
at [000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-1000] [or specify other address]:
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"We hereby accept your offer, set forth in the Underwriting
Agreement, dated [ ], 199[ ], to purchase the Offered Certificates on the terms
set forth therein."
Very truly yours,
[XXXXXX BROTHERS INC.]
By: ___________________________
Name:
Title:
[Signature block for other Underwriters, if any]
Agreed and Accepted:
XXXXXX ABS CORPORATION
By: ______________________
Name:
Title:
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Xxxxxx ABS Corporation
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[Corporate] [US Government]
[Foreign Government] Bond-Backed Certificates
FORM OF
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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 Paragraph 2 hereof. With respect to any
particular Underwriting Agreement, the Underwriting Agreement, together with the
provisions hereof incorporated therein by reference, is herein referred to as
this "Agreement". Terms defined in the Underwriting Agreement and the Series
Trust Agreement (as hereinafter defined) are used herein as therein defined.
Xxxxxx ABS Corporation, a Delaware corporation (the
"Depositor"), proposes to form one or more trusts (the "Trusts"), which will
issue and sell from time to time a series (a "Series") of its Trust certificates
registered under the registration statement referred to in Paragraph 1(a) hereof
(the "Certificates"). The primary assets (the "Primary Assets") of each Trust
will consist of a pool of [[___]% [Debentures] due [due date] issued by [name of
issuer]]. [Specify any other type of assets, including U.S. government or
foreign government bonds.] Each Certificate will evidence an undivided
beneficial ownership interest in a Trust. The Offered Certificates will be
issued by a Trust, created under a trust agreement, the Series [___] Trust
Agreement (the "Series Trust Agreement"), dated as of [
], 199[ ], between the Depositor [, Administrative Agent] and [name of bank],
as trustee (the "Series Trustee"). The Certificates will have the designations,
denominations, interest rates, distribution dates, final scheduled distribution
dates and selling prices set forth in the Underwriting Agreement.
I. The Depositor represents, warrants and agrees that:
A. A registration statement on Form S-3 (No.
[_______]) 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
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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[s] 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
Series Trust Agreement and the consummation of the transactions contemplated
therein have been, and at the Closing Date (as defined in Paragraph 4 hereof)
the Series 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 Series Trust Agreement will not
conflict with, result in the creation or imposition of any material lien, charge
or encumbrance upon any of the assets of the Depositor, pursuant to the terms
of, or constitute a default under, any material agreement, indenture or
instrument, or result in a violation of the corporate charter or by-laws of the
Depositor or any order, rule or regulation of any court or governmental
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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 Series Trust Agreement;
D. Except as described in the Registration
Statement and the Prospectus, there has not been any material adverse change or
any adverse development that materially affects, the business, properties,
financial condition or results of operations of the Depositor from the dates as
of which information is given in the Registration Statement and the Prospectus;
E. The Series 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 Series Trust Agreement relating to the
Offered Certificates and (ii) the Offered Certificates, the Series 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;
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;
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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 Series Trust Agreement has been or will be taken or
obtained on or prior to the Closing Date specified in the Series 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 Series Trust
Agreement will be true and correct;
O. At the time of the execution and delivery of the
Series Trust Agreement, the Depositor will be the beneficial owner of the
Primary Assets being transferred to the Series 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
Series Trust Agreement or the Offered Certificates being issued pursuant
thereto; and
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P. At the time of the execution and delivery of the
Series 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 [each of] the Underwriter[s] and, upon execution and delivery to
the Series Trustee of the Series Trust Agreement and delivery to [each of] the
Underwriter[s] of the Offered Certificates, the Primary Assets constituting a
portion of the Trust will have been duly and validly assigned to the Trust in
accordance with the terms of the Series Trust Agreement.
II. The obligation of the Underwriter[s] 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[s] that will
be the Underwriter[s], the principal or notional amount, as applicable, of the
Offered Certificates to be purchased by the Underwriter[s], the purchase price
to be paid by the Underwriter[s] for the Offered Certificates, the public
offering price of the Offered Certificates, certain terms thereof and the
Underwriter['s][s'] compensation therefor and any terms of the Offered
Certificates not already specified in the Series 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.
III. The Series Trustee 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.
IV. Payment for the Offered Certificates shall be made at the
location set forth in the Underwriting Agreement, by 11:00 A.M. New York City
time, on the fifth business day following the date of the Underwriting
Agreement, or at such other location, time and date as shall be agreed upon in
the Underwriting Agreement or otherwise. This date and time are sometimes
referred to as the "Closing Date." The Offered Certificates, in definitive form,
duly executed and authenticated, shall at the direction of the Underwriter[s] be
delivered by the Depositor, for safekeeping, against delivery of a safekeeping
receipt, to the Underwriter[s] at the offices of the Underwriter[s] in [New
York, New York], on the business day prior to the Closing Date, registered in
such names and denominations as the Underwriter[s] 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[s] for safekeeping
on the business day prior to the Closing Date, but shall instead deliver the
Offered Certificates
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to the Underwriter[s] on the Closing Date for the account of the Underwriter[s]
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[s] not
less than two business days prior to the Closing Date at such place in [New
York, New York], as the Underwriter[s] 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[s]
hereunder.
V. The Depositor agrees:
A. To furnish promptly to the Underwriter[s]
and to counsel for the Underwriter[s] 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[s]
such number of conformed copies of the Registration Statement (excluding
exhibits other than this Agreement) and each Prospectus as the Underwriter[s]
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[s], be required by the Act or requested by the
Commission and approved by the Underwriter[s];
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[s] and to counsel for the Underwriter[s], and the Depositor shall
not file any such amendment or supplement to which the Underwriter[s] shall
reasonably object;
E. To advise the Underwriter[s] 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
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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[s] may reasonably request, provided, however, that this
Paragraph 5(h) shall not obligate the Depositor or the Trust to file any general
consent to service of process or to qualify to do business in any jurisdiction
where they are now not qualified or as dealers in securities in any jurisdiction
in which they are not so qualified;
I. To pay or cause to be paid (i) the costs
incident in the preparation, printing and filing under the Act of the
Registration Statement and any amendments thereof and supplements and exhibits
thereto, (ii) the costs of distributing the Registration Statement as originally
filed and each amendment and post-effective amendment thereof (including
exhibits), any Preliminary Prospectus, each Prospectus and any amendment or
supplement to the Prospectus as provided in this Agreement; (iii) the costs of
printing and distributing this Agreement, the Series Trust Agreement and other
operative documents; (iv) the costs of filings, if any, with the National
Association of Securities Dealers, Inc.; (v) fees paid to any rating agency in
connection with the rating of the Offered Certificates; (vi) the fees and
expenses of qualifying the Certificates under the securities laws of the several
jurisdiction as provided in Paragraph 5(h) hereof and of preparing and printing,
if so requested by the Underwriter[s], 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[s] in connection
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therewith); and (vii) all other costs and expenses incident to the performance
of the Depositor's obligations under this Agreement; provided, however, that,
except as provided in Paragraph 9, the Underwriter[s] shall pay [its] [their]
own costs and expenses, including the fees and expenses of [its] [their]
counsel, any transfer taxes on the Offered Certificates that [it] [they] may
sell and the expenses of advertising any offering of the Offered Certificates
made by the Underwriter[s];
J. To file or cause the Series Trustee to file
on behalf of the Trust, on a timely basis, any documents and any amendments
thereof as may be required to be filed by it pursuant to the Exchange Act; and
K. To cause the Series Trustee while the
Certificates are outstanding to:
1. furnish to the Underwriter[s], 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 Series Trust Agreement; and
2. furnish to the Underwriter[s],
such other information with respect to the Trust or its financial
condition or results of operations, as the Underwriter[s] may
reasonably request, including but not limited to information necessary
or appropriate to the maintenance of a secondary market in the Offered
Certificates.
VI. A. The Depositor shall indemnify and hold harmless
the Underwriter[s] and each person, if any, who controls any Underwriter within
the meaning of the Act from and against any loss, claim, damage or lability,
joint or several, and any action in respect thereof, to which the Underwriter[s]
or controlling person[s] 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[s] and such controlling person[s] for any legal and other expenses
reasonably incurred by the Underwriter[s] or controlling person[s] 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
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Preliminary Prospectus, the Registration Statement or any Prospectus in reliance
upon and in conformity with written information furnished to the Depositor by
the Underwriter[s] specifically for inclusion therein; and provided further
that, as to any Preliminary Prospectus, this indemnity agreement shall not inure
to the benefit of any Underwriter or any person controlling any Underwriter on
account of any loss, claim, damage, liability or action arising from the sale of
Offered Certificates to any person by that Underwriter if that Underwriter
failed to send or give a copy of the Prospectus, as the same may be amended or
supplemented, to that person within the time required by the Act, and the untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in such Preliminary Prospectus was corrected
in such Prospectus, unless such failure resulted from non-compliance by the
Depositor with Paragraph 5(b). The foregoing indemnity is in addition to any
liability that the Depositor may otherwise have to any Underwriter or any person
or entity controlling such Underwriter.
B. The Underwriter[s] 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[s]
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 investing or 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 Paragraph of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this paragraph, notify the indemnifying
party in writing of the claim or commencement of that action, provided that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under this Paragraph. If
any
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such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this paragraph for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof; provided that the Underwriter[s] shall have the right to employ counsel
to represent the Underwriter[s], if (i) in the reasonable judgment of the
Underwriter[s], there may be legal defenses available to the Underwriter[s]
different from or in addition to those available to the Depositor, or there is a
conflict of interest between the Underwriter[s], 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[s] and the
controlling persons in connection with any other action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
D. If the indemnification provided for in this
Paragraph 6 shall for any reason be unavailable to an indemnified party under
Paragraph 6(a) or 6(b) hereof in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Depositor on the one hand and the Underwriter[s] 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[s] 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[s] 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[s] 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
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alleged omission to state a material fact relates to information supplied by the
Depositor or the Underwriter[s], 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[s] agree that it would
not be just and equitable if contributions pursuant to this Paragraph 6(d) were
to be determined by pro rata allocation [(even if the Underwriters were treated
as one entity for such purpose)] or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Paragraph 6(d) shall be deemed to include, for purposes of this Paragraph 6(d),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Paragraph 6(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Certificates underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to contribute
as provided in this Paragraph 6(d) are several in proportion to their respective
underwriting obligations and not joint.
E. The indemnity agreements contained in this
Paragraph and the representations, warranties and agreements of the Depositor in
Paragraph 1 and Paragraph 5 hereof, shall survive the delivery of the Offered
Certificates, and the provisions of this Paragraph and of Paragraph 5(j) shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any indemnified
party.
VII. The obligations of the Underwriter[s] under this
Agreement may be terminated by the Underwriter[s], in [its] [their] absolute
discretion by notice given to and received by the Depositor prior to the
delivery of and payment for the Offered Certificates, if, during the period
beginning on the date of this Agreement to and including the Closing Date, (a)
trading in securities generally on the New York Stock Exchange, Inc. is
suspended or minimum prices are established on that Exchange, or (b) a banking
moratorium is declared by Federal or New York State authorities, or (c) the
United States is or becomes engaged in hostilities that result in the
declaration of a national emergency, or (d) any rating of the Offered
Certificates shall be lowered by the nationally recognized statistical rating
agency (as such term is used in Rule 15c3-1 under the Exchange Act) that
initially rated the Certificates.
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VIII. The obligations of the Underwriter[s] under this
Agreement with respect to the Offered Certificates are subject to the accuracy,
on the date of this Agreement and on the Closing Date, of the representations
and warranties of the Depositor contained herein, to the performance by the
Depositor of its obligations hereunder, and to each of the following additional
terms and conditions applicable to the Offered Certificates:
A. At or before the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued, and prior to that time no stop order proceeding shall have been
initiated or threatened by the Commission; any request of the Commission for
inclusion of additional information in the Registration Statement or any
Prospectus or otherwise shall have been complied with; and after the date of
this Agreement the Depositor shall not have filed with the Commission any
amendment or supplement to the Registration Statement or any Prospectus to which
the Underwriter[s] shall have reasonably objected;
B. The Underwriter[s] 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[s], 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 Series Trust Agreement, other operative documents and
the form of the Registration Statement, each Prospectus (other than financial
statements and other financial data) and all other legal matters relating to
this Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all respects to Xxxx, Gotshal & Xxxxxx, LLP as counsel for the
Underwriter[s], 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;
X. Xxxxxxx to the Depositor shall have
furnished to the Underwriter[s] their opinion, dated the Closing Date, in form
and substance satisfactory to the Underwriter[s];
X. Xxxxxxx to the Series Trustee shall have
furnished to the Underwriter[s] their opinion, dated as of the applicable
Closing Date, in form and substance satisfactory to the Underwriter[s];
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F. The Underwriter[s] 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[s] 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[s] shall have received a
certificate or certificates signed by such of the principal executive, financial
and accounting officers of the Depositor as the Underwriter[s] 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;
H. If applicable, the Underwriter[s] 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[s] may rely upon their opinion
to such rating organization, as if such opinion were rendered to the
Underwriter[s];
I. The Underwriter[s] shall have received a
certificate of the Series Trustee, signed by one or more duly authorized
officers of the Series Trustee, dated the applicable Closing Date, as to the due
acceptance of the Series Trust Agreement by the Series Trustee and the due
authorization and delivery of the Certificates by the Series Trustee thereunder;
and
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X. The Depositor will furnish the Underwriter
[s] with such conformed copies of such opinions, certificates, letters and
documents as the Underwriter[s] 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[s].
IX. If the sale of the Offered Certificates shall not be
consummated because any condition to the Underwriter['s][s'] obligations set
forth in Paragraph 8 hereof is not satisfied or because of any refusal,
inability or failure on the part of the Depositor to perform any agreement
herein or comply with any provision hereof other than by reason of default of
the Underwriter[s], the Depositor shall reimburse the Underwriter[s] 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[s].
X. The Depositor shall be entitled to act and rely upon any
request, consent, notice or agreement by Xxxxxx Brothers Inc. as, or on behalf
of, the Underwriter[s]. Any notice by the Depositor to the Underwriter[s] shall
be sufficient if given in writing or by telegraph addressed to Xxxxxx Brothers
Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and any notice by the
Underwriter[s] to the Depositor shall be sufficient if given in writing or by
telegraph addressed to the Depositor at 3 World Financial Center, New York, New
York 10285, Attention of the Secretary.
XI. This Agreement shall be binding upon the Underwriter[s],
the Depositor and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the indemnity agreement of the Underwriter[s] contained in Paragraph 6 hereof
shall be deemed to be for the benefit of directors of the Depositor, officers of
the Depositor who have signed the Registration Statement and any person
controlling the Depositor. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this
Paragraph, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
XII. For purposes of this Agreement, "business day" means any
day on which the New York Stock Exchange, Inc. is open for trading.
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XIII. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
XIV. This Agreement may be executed in one or more
counterparts, and, if executed in more than one counterpart, the executed
counterparts shall together constitute a single instrument.
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