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