Dated As Of November 1, 1995
Xxxxx & Xxxx Distributors L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
MASTER AGREEMENT AMONG UNDERWRITERS
Xxxxx & Tang Distributors L.P.
Unit Investment Trusts
Gentlemen:
We understand that you, Xxxxx & Xxxx Distributors L.P., ("Xxxxx &
Tang") are entering into this agreement (the "Agreement") in counterparts
with us and other firms who may be underwriters for issues of any Unit
Investment Trust for which Xxxxx & Xxxx will act as depositor (the
"Depositor"). This Agreement shall apply to any offering on or after
November 1, 1995 of units of fractional undivided interests (the "Units")
in any Unit Investment Trust in which you are the Depositor and in which we
elect to act as an underwriter (the underwriters with respect to each such
trust, including you, being hereinafter called the "Underwriters") after
receipt of an oral or written notice ("Notice") from you stating the name,
size and proposed date of offering of such trust and that our participation
as an underwriter in the proposed offering shall be subject to the
provisions of this Agreement. We understand that you are not obligated to
give Notice to us and invite us to participate in the underwriting of any
such trust. We understand that each trust is to be created by a Trust
Agreement substantially in the form delivered to us (the "Trust Agreement")
under which you will act as Depositor, Chase Manhattan Bank, N.A. will act
as Trustee and, if applicable, Xxxxx S&P Evaluation Services, a division of
X.X. Xxxxx Co., Inc. will act as Evaluator. The Units shall be represented
by the certificates of ownership (the "Certificates") to be received in
exchange for the underlying debt obligations ("Debt Obligations") or with
respect to the Equity Securities Trust and all subsequent series in
exchange for the underlying portfolio of equity securities (the
"Securities") to be acquired hereunder upon the deposit of such Debt
Obligations or Securities in the trust. Each trust which we agree to
underwrite subject to this Agreement is hereinafter referred to as the
"Trust".
We hereby appoint you Managing Underwriter and authorize you, in
our behalf, to take all such action as you in your discretion may deem
necessary or advisable in order to carry out the provisions of this
Agreement and of the Trust Agreement and the sale and distribution of the
Units. We agree to execute such powers of attorney evidencing the powers
granted to you under this Agreement upon your request in such form and at
such times as you deem appropriate and advisable.
We hereby agree to sell Units only in those states where the
Units have been qualified for sale as indicated in the Blue Sky memorandum
provided to us by you. We further agree to provide you with such
additional information that you may request in connection with the
registration of Units in any state.
It is understood that you assume no responsibility with respect
to the right of any Underwriter or other person to offer or to sell Units
in any jurisdiction, notwithstanding any information which you may furnish
as to the jurisdictions under the securities laws of which it is believed,
based upon a Blue Sky survey performed by your counsel, the Units may be
sold.
If any Underwriter proposes to offer Units outside the United
States, or in a state in which the offering has not been registered, its
territories or its possessions, such Underwriter will take, at its own
expense, such action, if any, as may be necessary to comply with the laws
of each jurisdiction, domestic or foreign, in which it proposes to offer
Units.
1. Registration Of Trust And Units. We understand that (i) a
registration statement will be filed with the Securities and Exchange
Commission (the "Commission") under the Investment Company Act of 1940, as
amended (the "1940 Act") for the purpose of registering the Trust under the
1940 Act; (ii) a registration statement will be filed with the Commission
under the Securities Act of 1933, as amended (the "1933 Act"), to register
the Units under the 1933 Act (The 1933 Act Registration Statement as
amended at the time it becomes effective is hereafter referred to as the
"Registration Statement" and the related Prospectus contained therein is
hereafter referred to as the "Prospectus." The date as of which such
Registration Statement becomes effective pursuant to the 1933 Act by
Commission order is hereafter referred to as the "Effective Date"); and
(iii) the Trust will take all necessary action under the Blue Sky or
securities laws of the states where it is proposed that the Units may be
offered and sold to qualify the Units for public offer and sale as
indicated in the preliminary Blue Sky memorandum that is provided to us.
We understand that neither you nor any of the other Underwriters make any
representations or warranties or assume any responsibility with respect to
the foregoing except pursuant to the indemnity set forth in Section 11
hereof and except to the extent required by express provisions of the 1933
Act, the 1940 Act or other applicable law.
We hereby authorize you to take all such action on our behalf
related to the above as you or your counsel shall deem necessary and
advisable and to file and approve on our behalf any and all amendments or
supplements to said Registration Statement and related filings as you or
your counsel deem necessary and advisable. We confirm that we agree to
furnish you upon your request with such information as will be required to
insure that such Registration Statement, the Prospectus and all other
related documents are correct in so far as they relate to us.
We hereby authorize you, acting as our representative and on our
behalf, to take all such action as in your discretion nay be necessary or
advisable in order to carry out the provisions of this Agreement. We agree
that all action taken by Xxxxx & Xxxx hereunder, including the execution of
this Agreement with the Underwriters, shall be deemed to have been taken on
behalf of Xxxxx & Tang, as Depositor and Managing Underwriter.
2. Unit Commitment. We authorize you, acting as our agent and
on our behalf, to receive in exchange for the Underlying Debt Obligations
or the Underlying Securities, as defined in Section 3, the Units
representing a fractional undivided interest in the Trust up to the number
of Units which we have advised you by telegraph, telegram or other form of
facsimile transmission substantially in the form of Schedule B hereto that
we agree to purchase (the "Acceptance"). We understand that the Acceptance
must be received by you by the close of business on the day preceding the
Date of Deposit (as defined in the Indenture). We further agree that the
Underwriters to be subject to this Agreement for the Trust shall be those
who have given Acceptances and are named in the Prospectus. We hereby
authorize you to cause the Registration Statement as first filed with the
Securities and Exchange Commission in accordance with Paragraph 1 hereof
(the "Registration Statement") to be amended to include in the Prospectus
the amount of Units of the Trust which we have agreed to underwrite (our
"Unit Commitment"). We agree that notwithstanding our failure to send the
Acceptance to you in the manner set forth in this paragraph, our acceptance
of delivery of the Units
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subsequent to the Date of Deposit shall be deemed to be an Acceptance in
accordance with the provisions hereof.
The number of Units of each Trust to be underwritten hereunder is
unlimited and it is understood that you may increase the number of Units
specified in the Registration Statement, or you may decrease the number of
Units, if you shall deem it advisable and practicable to do so. You may
permit any Underwriter to increase its Unit Commitment (by written
agreement) or additional underwriters to become parties to this Agreement
(the addition of new parties hereto to be evidenced in each case by an
agreement substantially in the form of this Agreement to be entered into
between you and any such new party). You may decrease our Unit Commitment
by any amount, including to zero, by notifying us by telephone, such notice
to be confirmed in writing. Apart from the authorized decrease provided
for in this Paragraph, the number of Units to be underwritten by each of us
shall not be changed from the amount set forth in our Acceptance without
our written consent.
3. Accumulation Account. We authorize you as our agent and
attorney-in-fact and as Depositor to purchase and accumulate Debt
Obligations or Securities, as the case may be, for deposit in the Trust.
Debt Obligations or Securities, as the case may be, so purchased shall be
deposited in an "Accumulation Account" and shall hereafter be referred to
as the "Underlying Debt Obligations" or "Underlying Securities." The
Underlying Debt Obligations or Underlying Securities shall consist of
obligations of the type and quality described in the Prospectus. We agree
that you shall have no liability with respect to the issue, form, validity,
legality, enforceability, value of, tax status or title to the Underlying
Debt Obligations or Underlying Securities. We authorize you to execute on
our behalf an appropriate "investment letter" with respect to any
Underlying Debt Obligations or Underlying Securities purchased on a private
placement basis.
You are authorized to sell, exchange or otherwise dispose of
Underlying Debt Obligations or Underlying Securities from the Accumulation
Account, including those Underlying Debt Obligations or Underlying
Securities purchased for the Accumulation Account but not deposited in the
Trust, for such consideration as you shall deem appropriate and in the best
interests of the Accumulation Account. All profits and losses from such
transactions shall be included in the final computation of profits and
losses of the Accumulation Account. All profits and losses from the
purchase, accumulation and deposit of the Underlying Debt Obligations or
Underlying Securities in the Trust, adjusted to reflect expenses and
carrying charges, shall be recorded in the Accumulation Account and shall
be shared among the Underwriters in accord with their respective elections
set forth in Schedule B. In addition, you are authorized to deduct from the
Accumulation Account the costs of any advertising that you purchase on
behalf of you and all the Underwriters in accordance with Section 15
hereof. As Depositor, you shall be entitled to all remaining profit and,
correspondingly, shall be obligated for all losses of the Accumulation
Account not expressly allocated among the Underwriters in accord with such
elections.
We authorize you to purchase Underlying Debt Obligations or
Underlying Securities for the Accumulation Account from any seller,
including you and any of the Underwriters. Such purchases may be at the
current market price then in effect (as reasonably determined by you);
provided, however, if any Underwriter is a member of a syndicate
underwriting an original issue and is prohibited by price restrictions of
the syndicate from reselling Debt Obligations or Securities at less than a
certain price, then the purchase price of such Underlying Debt Obligations
or Underlying Securities to the Accumulation Account shall be the lowest
price permitted by such restrictions.
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We shall furnish to you in writing any information regarding
Underlying Debt Obligations or Underlying Securities sold by us to the
Accumulation Account which you deem necessary for inclusion in the
Prospectus, including the date on which such Debt Obligations or Securities
were acquired by us, the price of acquisition, and, if the sale is made by
us as a member of another underwriting syndicate, our takedown retained as
a member of such syndicate. If Underlying Debt Obligations or Underlying
Securities purchased from us were initially acquired by us from the manager
of a syndicate of which we are or were a member or manager, we agree that
there shall be furnished to you in writing such estimates as to our
participation in the profit to the syndicate resulting from such sale as
may be practicable under the circumstances.
If at any time prior to the deposit of Underlying Debt
Obligations or Underlying Securities in the Trust you shall determine that
it is impracticable or inadvisable to complete the acquisition of
Underlying Debt Obligations or Underlying Securities because of unfavorable
market conditions or for other reasons adversely affecting such acquisition
or the offering of Units hereunder, we authorize you to sell for the
Accumulation Account the Underlying Debt Obligations or Underlying
Securities acquired prior to such determination in such manner, at such
times and at such prices as you shall deem advisable. As soon as
practicable, after all of the Underlying Debt Obligations or Underlying
Securities have been sold pursuant to this paragraph, this Agreement shall
be terminated and our account hereunder settled in the manner stated in
Section 13.
4. Financing Of Accumulation Account. From time to time during
the term of this Agreement, we agree to transmit to you upon your request a
certified or official bank check to your order in an amount not in excess
of 10% of our respective Underwriting Percentage shares in the Accumulation
Account to serve as margin in carrying the Underlying Debt Obligations or
Underlying Securities and the Units received upon deposit of the Underlying
Debt Obligations or Underlying Securities in the Trust and for the other
purposes of this Agreement.
We authorize you to advance your own funds or to arrange loans
(including repurchase agreements) for the Accumulation Account for the
purposes of carrying the Underlying Debt Obligations or Underlying
Securities and the Units and of carrying out the other purposes of this
Agreement and in connection therewith to hold or pledge as security all or
any of the Underlying Debt Obligations or Underlying Securities and the
Units. You may deliver any note or other instrument in connection with
such transactions as you may deem necessary or advisable. Any lender or
purchaser is hereby authorized to accept your instructions with respect
thereto.
5. Trust Deposit And Certificates. We authorize you, acting as
our agent and in our behalf, to deposit the Underlying Debt Obligations or
Underlying Securities in the Trust at such time after the acquisition of
the Underlying Debt Obligations or Underlying Securities as you deem
appropriate and to receive in exchange therefor for our account
Certificates representing our Unit Commitment in the Trust. We authorize
you to retain custody of the Certificates until delivered to us or sold for
our account in accordance with this Agreement.
You may deliver to us from time to time against payment, for
carrying purposes only, any Certificates representing Units which you are
holding for sale for our account but which have not been sold and paid for.
We will redeliver to you against payment any such Certificates so delivered
to us for carrying purposes at such times as you may demand.
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6. Public Offering Of Trust Units. A public offering of the
Units is to be made as soon after the Effective Date as in your judgment is
advisable. You shall notify us promptly by telephone and confirm by mail
or telegram when the public offering is to commence (the "Public Offering
Date"). The public offering is to be made by means of the Prospectus and
at the public offering price, terms and conditions set forth in the
Prospectus. We authorize you to change the terms and conditions of the
public offering as you deem advisable.
We also confirm that we will take reasonable steps to provide the
preliminary prospectus prior to the Effective Date and the Prospectus
thereafter to any person making written request to us. We understand that
our requests for sufficient copies of such prospectuses will be processed
by your printer.
7. Purchase Of Units By The Underwriters. The sales charge
contemplated in this transaction is an amount per Unit as described in the
Prospectus. The amount set forth in Schedule B hereto will constitute the
per Unit sales takedown ("Underwriters' Takedown"). The amount of the
Underwriters' Takedown set forth in Schedule B is subject to change upon
written notice to each Underwriter by you. The sales charge less the
Underwriters' Takedown will accrue to you as Managing Underwriter.
Upon notification from you that the public offering is to
commence, we hereby agree with you and the several other Underwriters to
purchase Certificates representing our Unit Commitment on the Public
Offering Date. The price to be paid for each such Unit shall be the public
offering price on such Date plus the per Unit accrual of interest to the
settlement date (estimated at three business days thereafter) less the
Underwriters' Takedown. Such payment is to be made by delivering to you
within three business days of the Public Offering Date, a certified or bank
cashier's check in New York City Clearing House funds payable to the order
of Bear, Xxxxxxx & Co. Inc. for the benefit of Xxxxx & Tang Distributors
L.P. At the Public Offering Date, we will become the owner of such Units
and be entitled to the benefits and subject to the risks inherent therein.
We will offer to the public in conformity with the terms of the
offering and at the then effective public offering price described in the
Prospectus any of our Units not reserved by you for sale to retail accounts
or to dealers or sold by us directly to dealers as herein authorized. When
requested by us from time to time, you shall furnish to us the then
effective public offering price.
We may sell to dealers part or all of the Units delivered to us
for direct sale at the then effective public offering price, plus accrued
interest, less the dealer's concession set forth in the Prospectus, subject
to your right to change such concession from time to time. Any Units
purchased by us after the Public Offering Date as a result of an increase
in our Unit Commitment pursuant to Section 12 or which are delivered to us
for direct sale pursuant to Section 8 will be purchased by us at the then
effective public offering price plus accrued interest, less the
Underwriters' Takedown, with no additional accumulation profit
participation.
8. Direct Sales Authorization. We authorize you to sell for
our account to retail accounts or to dealers (including one or more of the
Underwriters) such of our Units as you shall determine. Sales of Units to
retail accounts or to dealers shall be made for the account of any
Underwriter in such manner as you may deem appropriate. Our liability to
take and pay for Units under this Agreement shall be reduced to reflect any
such sales of Units for our account. You shall advise us promptly on the
Effective Date as to our Units reserved by you for sale to retail accounts
or to dealers pursuant to
5
this paragraph. You may advise us at any time thereafter that any Units so
reserved for sale for our account and not sold are no longer so reserved and we
shall then be responsible to take and pay for such Units as if they had not been
reserved.
You shall deliver to us for direct sale any Units held by you for
our account and not reserved for sale to retail accounts or to dealers,
and, with your consent, any Units held for our account which are so
reserved from time to time in accordance with our instructions, and, upon
payment to you by us of the then effective public offering price of such
Units, plus accrued interest, adjusted for the Underwriters' Takedown.
We authorize you to sell for our account to other Underwriters
such of our Units held by you for our account as you shall determine which
are not reserved by you for sale to retail accounts or to dealers or, in
accord with the preceding paragraph, delivered to us for direct sale
provided that (i) such sales shall be made only to Underwriters to whom you
shall have delivered all of their Units not reserved for sale to retail
accounts or to dealers and (ii) such sales shall be made for the account of
each Underwriter for whose account you hold unreserved Units in such manner
as you may deem appropriate.
You may, and any of the other Underwriters may with your consent,
make purchases and sales of Units from or to any other Underwriter at the
then effective public offering price, plus accrued interest, adjusted for
the Underwriters' Takedown.
You shall advise us as soon as practicable of any sales made by
you for our account pursuant to this Section 8.
From time to time prior to the termination of this Agreement, on
your request, we will advise you of Units remaining unsold which were
delivered to us, and, on your request, we shall deliver to you any such
Units remaining unsold for sale for our account to retail accounts or,
adjusted for the Underwriters' Takedown, to other Underwriters or dealers,
all in the manner and subject to the limitations stated above.
We understand that any Units sold for our account to retail
accounts will be subject to a discount per Unit on purchases of 100 Units
or more, or with respect to the Equity Securities Trust and subsequent
series on purchases of 10,000 Units or more, as described in the
Prospectus.
9. Unit Repurchases. We understand and agree that you may, but
are not obligated to, repurchase any Units which are tendered or offered to
you by the holders thereof. If, during the term of this Agreement, you
purchase or contract to purchase, for the account of any Underwriter in the
open market or otherwise, Certificates for any Units which were retained
by, or released to, us for direct sale, or any Certificates which may have
been issued in exchange therefore or if any such Units shall be tendered to
the Trustee for redemption, and which Units were therefore not effectively
placed for investment by us, we authorize you to charge our account with an
amount equal to the underwriter's concession with respect thereto, or to
require us to repurchase such Units at a price equal to the total cost of
such purchase, including accrued interest and commissions, if any, and
transfer taxes on the redelivery.
If, for any reason, during the term of this Agreement we do not
sell all of our Unit Commitment, you agree to buy from us any unsold Units
we have in our account at the then current bid price plus accrued interest
(if applicable).
6
We agree that, until the termination of this Agreement, we will
make no purchase of the Units other than (i) purchases provided for in this
Agreement, (ii) purchases approved by you and (iii) purchases as a broker
in executing unsolicited orders.
10. Legal Opinion And Accountants' Letter. After notification
of the Effective Date has been released by the Securities and Exchange
Commission, there shall be furnished to us copies of all legal opinions and
accountants' reports which are delivered to you as Depositor, the Trustee
and the Trust.
11. Indemnification. We agree to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act from and against any and
all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus as amended and supplemented or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon or in conformity with information furnished to you by us for
use in the preparation of the Registration Statement or the Prospectus or
any amendment or supplement thereto. This indemnity agreement will be in
addition to any liability which we may otherwise have.
In case any action shall be brought against any Underwriter or
any person controlling such Underwriter based upon the Registration
Statement or the Prospectus or any amendment or supplement thereto in
respect of which indemnity may be sought against us, if such Underwriter
shall promptly notify us in writing, we shall assume the defense thereof,
including the employment of counsel and the payment of all expenses. Any
Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless the employment of such
counsel has been specifically authorized by us. We shall not be liable for
any settlement of any such action effected without our consent but if
settled with our consent or if there will be a final judgment for the
plaintiff in any such action, we agree to indemnify and hold harmless any
Underwriter and any such controlling person from and against any loss or
liability by reason of such settlement or judgment.
The indemnity agreement contained in this Section 11 shall remain
operative and in full force and effect regardless of (i) the termination of
this Agreement and (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter.
12. Substitution. Until the termination of this Agreement, we
authorize you to arrange for the substitution hereunder of other persons,
who may include you and us, for all or any part of the commitment of any
non-defaulting Underwriter with the consent of such Underwriter, and of any
defaulting Underwriter without his consent, upon such terms and conditions
as you may deem advisable, provided that such substitution shall not in any
way affect the liability of any defaulting Underwriter to the other
Underwriters for damages from such default, nor relieve any other
Underwriter of any obligation under this Agreement. The expenses
chargeable to the account of any defaulting Underwriter and not paid for by
it or by the person substituted for such Underwriter and any additional
losses or expenses arising from such default shall be considered to be
expenses of the underwriting account and
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shall be charged against the accounts of the non-defaulting Underwriters in
proportion to their respective Underwriting Percentages.
In the event that you shall for any reason cease to act as
Depositor of the Trust prior to the termination of the Trust Agreement, we
hereby authorize the Trustee to select a substitute Depositor as provided
in the Trust Agreement.
13. Termination. This Agreement shall terminate 30 days after
the Public Offering Date unless sooner terminated by you, provided that you
may extend this Agreement for not more than four successive periods of 30
days each upon notice to us and each of the other Underwriters. With
respect to the Equity Securities Trust and subsequent series, this
Agreement shall terminate ninety days after the Public Offering Date,
unless sooner terminated by you, provided that you may extend this
Agreement to successive periods of 30 days each upon notice to us and each
of the other underwriters if the public offering has been extended or
reopened as provided in the prospectus.
Upon termination of this Agreement, or prior thereto, at your
discretion, (i) you shall deliver to us Certificates for any Units received
by you for our account and not theretofore delivered to us and Certificates
for any Units held by you for our account and (ii) after (a) crediting to
our account advances made by us to you pursuant to Section 4 and payments
made to you on account of Units sold by you for our account or delivered by
you to us, (b) charging or crediting to our account our share of any profit
or loss in the Accumulation Account and (c) making such other credits or
charges to our account as are authorized by the provisions of this
Agreement, our account hereunder shall be settled and any amount due and
owing thereunder shall be paid by you or by us, as the case may be. The
determination by you as Depositor and Managing Underwriter of the amount to
be paid to or by us in settlement of our account shall be final and
conclusive.
Notwithstanding any settlement on the termination of this
Agreement, we agree to pay our Underwriting Percentage (as defined in
Section 14) share of any amount payable on account of any claim, demand or
liability which may be asserted against the Underwriters, or any of them,
based on the claim that the Underwriters constitute an association,
unincorporated business or other separate entity and our Underwriting
Percentage of any expenses incurred by you in defending against any such
claim, demand or liability. We also agree to pay any stamp taxes which may
be assessed and paid after such settlement on account of any units received
or sold hereunder for our account.
Notwithstanding any termination of this Agreement, no sale of the
Units shall be made by us at any time except in conformity with the
provisions of Section 22(d) of the 1940 Act.
We agree that if, within ninety days from the time the
Registration Statement shall have become effective, either (i) the net
worth of the Trust shall be reduced to less than $100,000 or (ii) the Trust
shall have been terminated, then we will refund, on demand and without
deduction, all sales charges to purchasers of Units from us or any dealer
participating in the distribution of our Units.
14. Underwriting Commitment. We hereby commit on the terms and
conditions of this Agreement to purchase and pay for the number of Units
set forth opposite our name in Schedule B ("Unit Commitment"). Except for
the right to decrease our Unit Commitment granted to you above, and except
as provided in Section 11, our Unit Commitment may be increased or
decreased only by mutual written agreement between us and you at any time
prior to the date
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the Underlying Debt Obligations or Underlying Securities are deposited in the
Trust.
Our percentage interest ("Underwriting Percentage") and the
percentage interest of each Underwriter in the total Units to be offered
shall be expressed by the following ratio:
Unit Commitment = Underwriting Percentage
Total Units
The final determination of the respective Underwriting Percentages of all
Underwriters shall be made by you as of the date the Underlying Debt
Obligations or Underlying Securities are deposited in the Trust.
You are authorized to increase or decrease the number of Units
(and, correspondingly, the amount of Underlying Debt Obligations or
Underlying Securities ) to be offered if you shall deem it advisable and
practicable to do so. In the event you shall elect to decrease the number
of Units hereunder, you shall have the right to decrease our Unit
Commitment proportionately by notifying us of such election by telephone
and promptly confirm by telegraph or writing.
You are authorized to amend Schedule A to add additional
Underwriters as you deem advisable in which case such Underwriters shall be
deemed to have been parties to this Agreement as of the date of its
confirmation by you. Any deletion of Underwriters from Schedule A by you
to reflect their withdrawal from this underwriting participation shall be
subject to reservation of all our rights with respect to them conferred in
us by this Agreement.
15. Advertising. Public advertisement of the offering may (but
need not) be made by you on your behalf or on behalf of the Underwriters on
such date as you shall determine. Such public advertisement may bear the
name of the Sponsor alone or the names of any or all Underwriters unless
any Underwriter shall notify you that it does not wish its name to so
appear. Any advertisement any Underwriter makes, or which any Underwriter
permits any dealer which purchases Units from it to make, will be at the
responsibility of such Underwriter and at such Underwriter's or dealer's
expense, provided, however, that all such public advertisement shall
conform to the rules and regulations of the Securities and Exchange
Commission relating thereto and of the National Association of Securities
Dealers, Inc. (the "NASD").
16. Miscellaneous. Default by any one or more of the other
Underwriters in respect of their several obligations under this Agreement
shall not release us from any of our obligations hereunder.
Nothing herein constitutes us partners with you or with the other
Underwriters and the obligations of ourselves and of each of the other
Underwriters are several and not joint.
Nothing herein contained shall be deemed to protect or purport to
protect any person against any liability to the Trust or the
Certificateholders to which such person would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in the
performance of the duties of such person, or by reason of such person's
reckless disregard of such person's obligations and duties under this
Agreement.
Notices hereunder shall be deemed to have been duly given if
telephoned and then promptly mailed or telegraphed to us at our address set
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forth in the Underwriters' Questionnaire, attached hereto as Exhibit A, or
to you at your address set forth at the head of this Agreement.
The headings contained in this Agreement are for reference
purposes only and shall not affect its meaning or interpretation. This
Agreement shall be governed by and construed in accordance with the laws of
the State of New York.
17. Underwriting Participants. This Agreement is being executed
by us and delivered to you in duplicate. Upon your confirmation hereof and
of Agreements in identical form with each of the other Underwriters, this
Agreement shall constitute a valid and binding contract among us.
Very truly yours,
Name of Firm: _____________________________
By:
---------------------------------------
(Authorized Signator)
Address: __________________________________
__________________________________
__________________________________
Confirmed as of the date set forth
on page 1 of this Agreement.
XXXXX & XXXX DISTRIBUTORS L.P.
Depositor and Managing Underwriter
__________________________________
(Acting as Depositor and on behalf
of the other several Underwriters
named in Schedule A hereto.)
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EXHIBIT A
UNDERWRITERS' QUESTIONNAIRE
Xxxxx & Tang Distributors L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
In connection with the proposed public offering of Units of
fractional undivided interest (the "Units") in the above referenced Unit
Investment Trust (the "Trust") and for use in any registration statement or
prospectus relating to such Units and pursuant to the Master Agreement
Among Underwriters dated as of November 1, 1995, the undersigned, as a
proposed underwriter, advises you as follows:
Our exact name and address (including zip code), as they should
appear in the prospectus, are as follows:
__________________________________
__________________________________
__________________________________
__________________________________
We are a (check one) / / Corporation, / / Partnership, or / / Sole
Proprietorship organized or existing under the laws of the State of __________.
We are a member of the National Association of Securities
Dealers, Inc. and are registered with the Securities and Exchange
Commission as a broker or dealer pursuant to Section 15(b) of the
Securities Exchange Act of 1934.
We represent that our participation in the offering of the Units
will not place us in violation of Rule 15c3-1 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934 or the rules
of any securities exchange of which we are a member.
Except as indicated below, other than as may be stated in the
Registration Statement under the Securities Act of 1933, as amended
relating to the Units or in any prospectus filed as part thereof, or any
registration statement relating to the Trust under the Investment Company
Act of 1940, as amended or the Agreement Among Underwriters:
(a) neither we nor any "affiliated person", as defined in
Section 2(a)(3) of the Investment Company Act of 1940, have received,
nor do we know of any arrangement whereby we or any such persons will
receive, any profits or other benefits through the sale or purchase of
the Units or interests therein, or the deposited bonds or interests
herein;
(b) we do not know of any arrangement to limit or restrict the
sale of the Units for the period of distribution, to stabilize the
market for the Units or the deposited bonds, for withholding
11
commissions, or otherwise to hold each underwriter or dealer
responsible for the distribution of its participation, nor do we know
of any current agreements or arrangements with dealers, agents or
salesmen with respect to commissions, discounts, overriding
commissions, territories, franchises and the like with respect to the
offering of the Units;
(c) we have not received, nor do we know of any arrangement
whereby we are to receive any fees from the sale of the Units or from
any other functions to be performed by us in connection therewith.
We have never acted in any capacity with respect to any
investment company or companies other than the Trust except to sell
securities of other investment companies as a member of underwriting groups
or selling groups or as agents of such companies, to execute orders for the
purchase and sale of securities of such companies, or to sell securities to
or purchase securities from any such companies in our capacity as a broker
or dealer in securities.
(State exceptions, if any)
We will notify you immediately in the event of any development
before the date of completion of the public offering of the Units which
makes untrue or incomplete any of the above statements.
We will keep an accurate record of the names and addresses of all
persons to whom we give copies of the Registration Statement or any
amendments thereto, or any preliminary or final prospectus relating to the
Units and, when furnished with copies of any subsequent amendment or
supplement to the Registration Statement or any prospectus or any
memorandum outlining changes in the Registration Statement or any
prospectus, we will promptly forward copies to such persons.
Very truly yours,
Name of Firm: ________________________________________
By:
----------------------------------------
(Authorized Signature)
----------------------------------------
(Print Name and Title)
Dated: _________________
12
SCHEDULE B TO
MASTER AGREEMENT AMONG UNDERWRITERS
FORM OF ACCEPTANCE
SPONSOR: XXXXX & XXXX DISTRIBUTORS L.P.
Name of Underwriter __________________________________________________________
Expected Date of Proposed Offering ___________________________________________
EQUITY SECURITIES TRUST SERIES 6 Unit
GABELLI ENTERTAINMENT AND MEDIA TRUST Commitment: __________________
For purposes of this Trust, the Underwriters' Takedown* per unit
shall be as follows:
Unit Amount Concession
----------- ----------
10,000 2.2%
25,000 2.3%
50,000 2.4%
100,000 2.5%
200,000 2.6%
400,000 2.7%
We accept the invitation to participate as one of the Underwriters of
the above-referenced Trust, with a commitment up to the amount specified
above, pursuant to the Master Agreement Among Underwriters dated as of
November 1, 1995, and confirm that the representations and warranties set
forth in Exhibit A thereto are true and correct as of the date hereof.
Name of Firm: ___________________________________________________________
By:
-----------------------------------------------------------
(Authorized Signature)
Address: ___________________________________________________________
___________________________________________________________
Date: ___________________________________________________________
-----------------
* Subject to change upon written notice to each Underwriter by the Depositor.
