EXHIBIT 1.1
CCR&W Draft - 7/23/02
$__________________
COMCERTZ ABS CORPORATION
[Asset Backed Certificates]
[Series [___] Certificates]
UNDERWRITING AGREEMENT
--------, ----
[COMMERZBANK CAPITAL MARKETS CORP.]
[As Representative of the several Underwriters]
[1251 Avenue of the Americas]
[New York, New York 10020]
Dear Sirs:
Comcertz ABS Corporation (the "Depositor") is a special purpose
corporation organized under the laws of Delaware. The Depositor has authorized
the issuance and sale of [Adjustable Rate] [Variable Rate] [%] Asset Backed
[Senior/Subordinate] Certificates, [Class _] [Series _] (the "Certificates").
The [Class _] [Series _] Certificates will evidence an interest in certain
assets deposited into a Trust (a "Trust") by the Depositor as depositor or
transferor pursuant to a Trust Agreement (the "Trust Agreement") [which includes
a terms schedule ("Terms Schedule") and incorporates by reference the standard
trust terms ("Standard Terms") specified in the Registration Statement (as
defined below)].
The [Class _] [Series _] Certificates of a series will represent
fractional undivided interests in the related Trust. The property of the Trust
will include (i) [Name of Underlying Securities] ("Underlying Securities")
described in the applicable Prospectus Supplement (as defined below), (ii) if so
specified in the applicable Prospectus Supplement, any form of credit
enhancement to the [Class _] [Series _] Certificates provided by a third party
(the "Enhancer") pursuant to the related credit enhancement agreement (the
"Enhancement Agreement") as described in such Prospectus Supplement and (iii) if
so specified in the applicable Prospectus Supplement, any interest rate swaps,
interest rate caps, credit default swaps, total return swaps, any other kinds of
swap contracts, exchange contracts, hedging contracts and similar financial
contracts and instruments (any such agreement, "Swap Agreement") provided by a
third party counterparty (the "Swap Counterparty") as described in such
Prospectus Supplement.
Only the [Class _] [Series _] Certificates are being purchased by the
Underwriters named in Schedule A hereto, and the Underwriters are purchasing,
severally, only the [Class_] [Series _] Certificates set forth opposite their
names in Schedule A, except that the amounts purchased by the Underwriters may
change in accordance with Section 10 of this Agreement. [Commerzbank Capital
Markets Corp. is acting as representative of the several Underwriters and in
such capacity is hereinafter referred to as the "Representative."]
The [Class _] [Series _] Certificates are more fully described in a
Registration Statement which the Depositor has furnished to the Representative.
Capitalized terms used but not defined herein shall have the meanings given to
them in the [Trust Agreement] [Enhancement Agreement] [Swap Agreement], forms of
which have been timely filed as exhibits to the Registration Statement.
[On or prior to the Closing Date (as defined below), [Commerzbank Capital
Markets Corp. ("CCMC")] will sell to the Depositor all of its right, title and
interest in and to the Underlying Securities pursuant to a sale agreement (the
"Sale Agreement").]
Section 1. Representations and Warranties of the Depositor. The Depositor
represents and warrants to, and agrees with the Underwriters that:
1
(a) A Registration Statement on Form S-3 (No. 33-____) has (i) been
prepared by the Depositor in conformity with the requirements of the
Securities Act of 1933 (the "Securities Act") and the rules and
regulations (the "Rules and Regulations") of the United States Securities
and Exchange Commission (the "Commission" or the "SEC") thereunder, (ii)
been filed with the Commission under the Securities Act and (iii) become
effective under the Securities Act. Copies of such Registration Statement
have been delivered by the Depositor to the Underwriters. As used in this
Agreement, "Effective Time" means the date and the time as of which such
Registration Statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time; "Preliminary Prospectus" means
each Prospectus included in such Registration Statement, or amendments
thereof, including a preliminary Prospectus Supplement which, as
completed, is proposed to be used in connection with the sale of the
[Class _] [Series _] Certificates before it became effective under the
Securities Act and any Prospectus filed with the Commission by the
Depositor with the consent of the Representative pursuant to Rule 424(a)
of the Rules and Regulations; "Registration Statement" means such
registration statement, as amended at the Effective Time, including any
documents incorporated by reference therein at such time and all
information contained in the final Prospectus filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations in accordance with
Section 5(a) hereof and deemed to be a part of the Registration Statement
as of the Effective Time pursuant to paragraph (b) of Rule 430A of the
Rules and Regulations; and "Prospectus" means such final Prospectus, as
supplemented by a Prospectus Supplement (the "Prospectus Supplement")
relating to the [Class _] [Series _] Certificates, as first filed with the
Commission pursuant to paragraph (1) or (4) of Rule 424 (b) of the Rules
and Regulations. Reference made herein to any Preliminary Prospectus or to
the Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Securities Act, as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any document filed under the Securities Exchange
Act of 1934 (the "Exchange Act") after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and incorporated by
reference in such Preliminary Prospectus or the Prospectus, as the case
may be; and any reference to any amendment to the Registration Statement
shall be deemed to include any report of the Depositor filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after
the Effective Time that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. There are no contracts
or documents of the Depositor which are required to be filed as exhibits
to the Registration Statement pursuant to the Securities Act or the Rules
and Regulations which have not been so filed or incorporated by reference
therein on or prior to the Effective Date of the Registration Statement.
The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the Securities Act and the Rules and Regulations. The
Registration Statement, as of the Effective Date thereof and of any
amendment thereto, did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus as
of its date, and as amended or supplemented as of the Closing Date does
not and will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Depositor in writing by the Underwriters expressly for
use therein.
(c) The financial statements, if any, incorporated by reference in
the Registration Statement present fairly the financial position of the
Depositor as of the dates indicated and the results of its operations for
the periods specified; and said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
basis which is consistent in all material respects during the periods
involved.
(d) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the
2
requirements of the Securities Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such documents
become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(e) Since the respective dates as of which information is given in
the Prospectus, there has not been any material adverse change in the
general affairs, management, financial condition, or results of operations
of the Depositor, otherwise than as set forth or contemplated in the
Prospectus as supplemented or amended as of the Closing Date.
(f) The Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing as
a foreign corporation in each jurisdiction in which its ownership or lease
of property or the conduct of its business requires such qualification,
and has all power and authority necessary to own or hold its properties,
to conduct the business in which it is engaged and to enter into and
perform its obligations under this Agreement and the [Trust Agreement]
[Enhancement Agreement] [Swap Agreement], and to cause the [Class _]
[Series _] Certificates to be issued.
(g) There are no actions, proceedings or investigations pending
before or threatened by any court, administrative agency or other tribunal
to which the Depositor is a party or of which any of its properties is the
subject (i) which if determined adversely to the Depositor would have a
material adverse effect on the business or financial condition of the
Depositor, (ii) asserting the invalidity of this Agreement, the [Sale
Agreement] [Trust Agreement] [Enhancement Agreement] [Swap Agreement]
(iii) seeking to prevent the issuance of the [Class _] [Series _]
Certificates or the consummation by the Depositor of any of the
transactions contemplated by the [Sale Agreement] [Trust Agreement]
[Enhancement Agreement] [Swap Agreement], or (iv) which might materially
and adversely affect the performance by the Depositor of its obligations
under, or the validity or enforceability of the [Sale Agreement] [Trust
Agreement] [Enhancement Agreement] [Swap Agreement] or the [Class _]
[Series _] Certificates.
(h) This Agreement has been, and the [Sale Agreement] [Trust
Agreement] [Enhancement Agreement] [Swap Agreement] when executed and
delivered as contemplated hereby and thereby will have been, duly
authorized, executed and delivered by the Depositor, and this Agreement
constitutes, and the [Sale Agreement] [Trust Agreement] [Enhancement
Agreement] [Swap Agreement] when executed and delivered as contemplated
herein will constitute, legal, valid and binding instruments of the
Depositor enforceable against the Depositor in accordance with their
respective terms, subject as to enforceability to: (x) applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally; (y) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law); and (z) with respect to rights to indemnity and contribution
under this Agreement, limitations on the enforceability thereof under
applicable securities laws.
(i) The execution, delivery and performance of this Agreement, the
[Sale Agreement] [Trust Agreement] [Enhancement Agreement] [Swap
Agreement] by the Depositor and the consummation of the transactions
contemplated hereby and thereby, and the issuance and delivery of the
[Class _] [Series _] Certificates do not and will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of Trust, loan
agreement or other agreement or instrument to which the Depositor is a
party, by which the Depositor is bound or to which any of the property or
assets of the Depositor or any of its subsidiaries is subject, nor will
such actions result in any violation of the provisions of the articles of
incorporation or by-laws of the Depositor or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Depositor or any of its properties or assets.
(j) [___________________ are independent public accountants with
respect to the Depositor as required by the Securities Act and the Rules
and Regulations.]
3
(k) The direction by the Depositor to the Trustee to execute,
countersign, issue and deliver the [Class _] [Series _] Certificates has
been duly authorized by the Depositor, and assuming the Trustee has been
duly authorized to do so, when executed, countersigned, issued and
delivered by the Trustee in accordance with the [Trust Agreement], the
[Class _] [Series _] Certificates will be validly issued and outstanding
and will be entitled to the benefits provided by the [Trust Agreement].
(l) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States is required for the issuance of the [Class _] [Series _]
Certificates and the sale of the [Class _] [Series _] Certificates to the
Underwriters, or the consummation by the Depositor of the other
transactions contemplated by this Agreement, the [Sale Agreement] [Trust
Agreement] [Enhancement Agreement] [Swap Agreement], except such consents,
approvals, authorizations, registrations or qualifications as may be
required under State securities or Blue Sky laws in connection with the
purchase and distribution of the [Class _] [Series _] Certificates by the
Underwriters or as have been obtained.
(m) The Depositor possesses all material licenses, Certificates,
authorities or permits issued by the appropriate State, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now
conducted by it and as described in the Prospectus, and the Depositor has
not received notice of any proceedings relating to the revocation or
modification of any such license, Certificate, authority or permit which
if decided adversely to the Depositor would, singly or in the aggregate,
materially and adversely affect the conduct of its business, operations or
financial condition.
(n) At the time of execution and delivery of the [Trust Agreement],
the Depositor will: (1) have good title to the Trust Assets, free and
clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim or
other security interest (collectively, "Liens"); (ii) not have assigned to
any person any of its right, title or interest in the Underlying
Securities, in the [Sale Agreement] [Trust Agreement] [Enhancement
Agreement] [Swap Agreement] or in the [Class _] [Series _] Certificates
being issued pursuant thereto; and (iii) have the power and authority to
sell or pledge the Underlying Securities to the Trustee and to sell the
[Class _] [Series _] Certificates to the Underwriters. Upon execution and
delivery of the Certificates [Trust Agreement] by the Trustee, the Trustee
will have acquired beneficial ownership of all of the Depositor's right,
title and interest in and to the Trust Assets, Upon delivery to the
Underwriters of the [Class _] [Series _] Certificates, the Underwriters
will have good title to the [Class _] [Series _] Certificates, free of any
Liens.
(o) As of the Closing Date, each of the Underlying Securities will
conform to the description thereof contained in the Prospectus.
(p) Neither the Depositor nor the Trust is an "investment company"
within the meaning of such term under the Investment Company Act of 1940
(the "1940 Act") and the rules and regulations of the Commission
thereunder.
(q) At the Closing Date, the [Class _] [Series _] Certificates and
the [Trust Agreement] will conform in all material respects to the
descriptions thereof contained in the Prospectus.
(r) At the Closing Date, the [Class _] [Series _] Certificates shall
have been rated in one of the four highest rating categories by at least
one nationally recognized rating agency.
(s) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the [Sale
Agreement] [Trust Agreement] [Enhancement Agreement] [Swap Agreement] and
the [Class _] [Series _] Certificates have been paid or will be paid at or
prior to the Closing Date.
(t) At the Closing Date, each of the representations and warranties
of the Depositor set forth in the [Trust Agreement] will be true and
correct in all material respects.
Any [Class _] [Series _] Certificate signed by an officer of the Depositor
and delivered to the Representative or counsel for the Representative in
connection with an offering of the [Class _] [Series _] Certificates shall be
deemed, and shall state that it is, a representation and warranty as to the
matters covered thereby to each person to whom the representations and
warranties in this Section 1 are made.
4
Section 2. Purchase and Sale. The commitment of the Underwriters to
purchase the [Class _] [Series _] Certificates pursuant to this Agreement shall
be deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth. The Depositor agrees to instruct the Trustee to issue and agrees to sell
to the Underwriters, and the Underwriters agree (except as provided in Sections
10 and 11 hereof) to purchase from the Depositor the aggregate initial principal
amounts of [Class _] [Series _] Certificates set forth opposite their names on
Schedule A, at the purchase price or prices set forth in Schedule A.
Section 3. Delivery and Payment. Delivery of and payment for the [Class _]
[Series _] Certificates to be purchased by the Underwriters shall be made at
such place as shall be agreed upon by the Representative and the Depositor at
10:00 A.M. New York City time on _______________, ____ or at such other time or
date as shall be agreed upon in writing by the Representative and the Depositor
(such date being referred to as the "Closing Date"). Payment shall be made to
the Depositor by wire transfer of same day funds payable to the account of the
Depositor. Delivery of the [Class _] [Series _] Certificates shall be made to
the Representative for the accounts of the Underwriters against payment of the
purchase price thereof. The [Class ] [Series _] Certificates shall be in such
denominations and registered in such names as the Representative may request in
writing at least two business days prior to the Closing Date. The [Class _]
[Series] Certificates will be made available for examination by the
Representative no later than 2:00 p.m. New York City time on the first business
day prior to the Closing Date.
Section 4. Offering by the Underwriters. It is understood that, subject to
the terms and conditions hereof, the Underwriters propose to offer the [Class _]
[Series _] Certificates for sale to the public as set forth in the Prospectus.
Section 5. Covenants of the Depositor. The Depositor agrees as follows:
(a) To prepare the Prospectus in a form approved by the Underwriters
and to file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under
the Securities Act; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the Closing Date
except as permitted herein; to advise the Underwriters, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish the Underwriters with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Depositor with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and, for so long as the delivery of a Prospectus is required in
connection with the offering or sale of the [Class _] [Series_]
Certificates, to promptly advise the Underwriters of its receipt of notice
of the issuance by the Commission of any stop order or of: (i) any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus; (ii) the suspension of the qualification of the [Class _]
[Series _] Certificates for offering or sale in any jurisdiction; (iii)
the initiation of or threat of any proceeding for any such purpose; (iv)
any request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information. In
the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification, the Depositor promptly shall use its
best efforts to obtain the withdrawal of such order by the Commission.
(b) To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and of each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith.
(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case including
exhibits); (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus; and (iii) any document incorporated by
reference in the Prospectus (including exhibits thereto). If the delivery
of a Prospectus is required at any time prior to the expiration of nine
months after the Effective Time in connection with the offering or sale of
the [Class _] [Series _] Certificates, and if at such time any events
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include
5
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Securities Act or the Exchange
Act, the Depositor shall notify the Underwriters and, upon the
Underwriters' request, shall file such document and prepare and furnish
without charge to the Underwriters and to any dealer in securities as many
copies as the Underwriters may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which corrects such
statement or omission or effects such compliance, and in case the
Underwriters are required to deliver a Prospectus in connection with sales
of any of the [Class _] [Series _] Certificates at any time nine months or
more after the Effective Time, upon the request of the Underwriters but at
their expense, the Depositor shall prepare and deliver to the Underwriters
as many copies as the Underwriters may reasonably request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Securities
Act.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Depositor or the Underwriters,
be required by the Securities Act or requested by the Commission.
(e) Prior to filing with the Commission any (i) Preliminary
Prospectus, (ii) amendment to the Registration Statement or supplement to
the Prospectus, or document incorporated by reference in the Prospectus or
(iii) Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Underwriters and counsel for the
Underwriters and obtain the consent of the Underwriters to the filing.
(f) To make generally available to holders of the [Class _] [Series
_] Certificates as soon as practicable, but in any event not later than 90
days after the close of the period covered thereby, a statement of
earnings of the Trust (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations (including, at
the option of the Depositor, Rule 158) and covering a period of at least
twelve consecutive months beginning not later than the first day of the
first fiscal quarter following the Closing Date.
(g) To use it best efforts, in cooperation with the Underwriters, to
qualify the [Class _] [Series _] Certificates for offering and sale under
the applicable securities laws of such states and other jurisdictions of
the United States as the Underwriters may designate, and maintain or cause
to be maintained such qualifications in effect for as long as may be
required for the distribution of the [Class _] [Series _] Certificates.
The Depositor will file or cause the filing of such statements and reports
as may be required by the laws of each jurisdiction in which the [Class _]
[Series _] Certificates have been so qualified.
(h) Not, without the Underwriters' prior written consent, to
publicly offer or sell or contract to sell any asset backed securities, or
other similar securities representing interests in or secured by other
assets originated or owned by the Depositor for a period of [30] business
days following the commencement of the offering of the [Class _] [Series
_] Certificates to the public.
(i) So long as the [Class _] [Series _] Certificates shall be
outstanding, to deliver to the Underwriters as soon as such statements are
furnished to the Trustee (i) any annual statement as to compliance that
may be required to be delivered to the Trustee pursuant to the [Trust
Agreement] and (ii) any annual statement of a firm of independent public
accountants that may be required to be furnished to the Trustee pursuant
to the [Trust Agreement].
(j) To apply the net proceeds from the sale of the [Class _] [Series
_] Certificates in the manner set forth in the Prospectus.
Section 6. Conditions to the Underwriters' Obligations. The obligations of
the Underwriters to purchase the [Class _] [Series _] Certificates pursuant to
this Agreement are subject to (i) the accuracy on and as of the Closing Date of
the representations and warranties on the part of the Depositor herein
contained, (ii) the performance by the Depositor of all of their respective
obligations hereunder and (iii) the following conditions as of the Closing Date:
6
(a) The Underwriters shall have received confirmation of the
effectiveness of the Registration Statement. No stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated
or threatened by the Commission. Any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus shall have been complied with.
(b) The Underwriters shall not have discovered and disclosed to the
Depositor on or prior to the Closing Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact or omits to state a fact which, in the opinion
of ________________, counsel for the Representative, is material and is
required to be stated therein or is necessary to make the statements
therein not misleading.
(c) All corporate proceedings and other legal matters relating to
the authorization, form and validity of this Agreement, the [Trust
Agreement] [Enhancement Agreement] [Swap Agreement] [Sale Agreement], the
[Class _] [Series _] Certificates, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in all respects to
counsel for the Representative, 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
Underwriters their written opinion, as counsel to the Depositor,
addressed to the Underwriters and dated the Closing Date, in form
and substance satisfactory to the Underwriters to the effect that:
(i) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of it
jurisdiction of incorporation, is duly qualified to do business and
is in good standing as a foreign corporation in each jurisdiction in
which its ownership or lease of property or the conduct of its
business requires such qualification, and has all power and
authority necessary to own or hold its properties and to conduct the
business in which it is engaged and to enter into and perform its
obligations under this Agreement, the [Trust Agreement] [Enhancement
Agreement] [Swap Agreement] [Sale Agreement], and to cause the
[Class _] [Series _] Certificates to be issued;
(ii) The Depositor is not in violation of its articles of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Depositor is
a party or by which it or its properties may be bound, which default
might result in any material adverse changes in the financial
condition, earnings, affairs or business of the Depositor or which
might materially and adversely affect the properties or assets,
taken as a whole, or the Depositor;
(iii) This Agreement, the [Trust Agreement] [Enhancement
Agreement] [Swap Agreement] [Sale Agreement] have been duly
authorized, executed and delivered by the Depositor and, assuming
the due authorization, execution and delivery of such agreements by
the other parties thereto, such agreements constitute valid and
binding obligations of the Depositor in accordance with their
respective terms, subject as to enforceability to (x) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, (y)
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and (z) with respect to
rights to indemnity and contribution under this Agreement,
limitations on the enforceability thereof under applicable
securities laws;
(iv) The execution, delivery and performance of this
Agreement, the [Trust Agreement] [Enhancement Agreement] [Swap
Agreement] [Sale Agreement] by the Depositor, the consummation of
the transactions contemplated hereby, and thereby and the issuance
and delivery of the [Class _] [Series _] Certificates do not and
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of Trust, loan agreement or other
agreement or instrument to which the Depositor is a party or by
which the Depositor is bound or to which any of the property or
assets of the Depositor or any of its subsidiaries is subject, nor
will such actions result in any violation of
7
the provisions of the articles of incorporation or by-laws of the
Depositor or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Depositor or any of its properties or assets;
(v) The [Sale Agreement] is sufficient to convey all of CCMC's
right, title and interest in the Underlying Securities to the
Depositor;
(vi) The direction by the Depositor to the Trustee to execute,
issue, countersign and deliver the [Class _] [Series _] Certificates
has been duly authorized by the Depositor and, assuming that the
Trustee has been duly authorized to do so, when executed and
countersigned and delivered by the Trustee against payment of the
agreed upon consideration therefor in accordance with the [Trust
Agreement], the [Class _] [Series _] Certificates will be validly
issued and outstanding and will be entitled to the benefits of the
[Trust Agreement];
(vii) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
of the United States is required for the issuance of the [Class _]
[Series _] Certificates, and the sale of the [Class _] [Series _]
Certificates to the Underwriters, or the consummation by the
Depositor of the other transactions contemplated by this [Agreement]
[Trust Agreement] [Enhancement Agreement] [Swap Agreement] [Sale
Agreement] except such consents, approvals, authorizations,
registrations or qualifications as may be required under State
securities or Blue Sky laws in connection with the purchase and
distribution of the [Class _] [Series _] Certificates by the
Underwriters or as have been previously obtained;
(viii) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Depositor
prior to the Closing Date (other than the financial statements and
related schedules, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Securities Act and the Rules and Regulations, and the documents
incorporated by reference in the Prospectus and any further
amendment to any such incorporated document made by the Depositor
prior to the Closing Date (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission complied as to conform in all material respects with the
requirements of the Securities Act and the Rules and Regulations of
the Commission thereunder;
(ix) The Registration Statement and any amendments thereto
have become effective under the Act; to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn, no
proceedings for that purpose have been instituted or threatened and
not terminated; and the Registration Statement, the Prospectus and
each amendment or supplement thereto, as of their respective
effective or issue dates (other than the financial and statistical
information contained therein as to which such counsel need express
no opinion), complied as to form in all material respects with the
applicable requirements of the Act and the rules and regulations
thereunder;
(x) To the best knowledge of such counsel, there are no
material contracts, indentures or other documents of a character
required to be described or referred to in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto;
(xi) There are no actions, proceedings or investigations
pending before or, to the best knowledge of such counsel, threatened
by any court, administrative agency or other tribunal to which the
Depositor is a party or of which any of its properties is the
subject: (a) which if determined adversely to the Depositor would
have a material adverse effect on the business, results of
operations or financial condition of the Depositor; (b) asserting
the invalidity of the [Trust Agreement] [Enhancement Agreement]
[Swap Agreement] [Sale Agreement], or the [Class _] [Series _]
Certificates; (c) seeking to prevent the issuance of the [Class _]
[Series _] Certificates or the consummation by the Depositor of any
of the transactions contemplated by the [Trust
8
Agreement] [Enhancement Agreement] [Swap Agreement] [Sale Agreement]
or this Agreement, as the case may be; or (d) which might materially
and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, this
Agreement, the [Trust Agreement] [Enhancement Agreement] [Swap
Agreement] [Sale Agreement], or the [Class _] [Series _]
Certificates;
(xii) The [Trust Agreement] conforms in all material respects
to the description thereof contained in the Prospectus, and is not
required to be qualified under the Trust Indenture Act of 1939;
(xiii) Neither the Depositor nor the Trust is required to be
registered as an "investment company" under the control of an
"investment company" as such terms are defined in the 1940 Act;
(xiv) The [Class _] [Series _] Certificates have been duly and
validly authorized and issued, conform to the description thereof
contained in the Prospectus and, immediately prior to the sale
thereof to the Underwriters, are owned by the Depositor, free and
clear of all Liens;
(xv) The statements contained in the Prospectus and the
Prospectus Supplement, as the case may be, under the captions
["Prospectus Summary--Material Federal Income Tax Consequences,"
"Prospectus Summary--ERISA Considerations," "Certain ERISA and Other
Considerations" and "Material Federal Income Tax Consequences"],
insofar as they describe federal statutes, rules and regulations,
constitute a fair summary thereof;
(xvi) Assuming that the [Class _] [Series _] Certificates have
been duly and validly authorized, executed and authenticated or
countersigned in the manner contemplated in the [Trust Agreement],
when delivered and paid for by the Underwriters as provided in this
Agreement, they will be validly issued and outstanding and entitled
to the benefits of the [Trust Agreement];
(xvii) The [Class _] [Series _] Certificates and the [Trust
Agreement] conform to the descriptions thereof contained in the
Prospectus; and
(xviii) The statements in the Prospectus and the Prospectus
Supplement, as the case may be, under the headings "[Material
Federal Income Tax Consequences]," "[State Consequences]," "[
Certain ERISA and Other Considerations]," "[Legal Investment
Considerations]," and "[Legal Investment]" to the extent that they
constitute matters of New York or federal law or legal conclusions
with respect thereto, have been reviewed by such counsel and are
correct in all material respects with respect to those consequences
or aspects that are discussed.
Such counsel shall also state that nothing has come to its attention that
would lead such counsel to believe that the Registration Statement, at the time
it became effective, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of the date of the
Prospectus Supplement, and on the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being understood
that such counsel need express no view as to (i) financial and statistical
information contained therein or (ii) any description in the Prospectus of any
third party providing a derivative agreement or credit enhancement to the [Class
_] [Series _] Certificates.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by, officers of the parties to this Agreement, the [Trust Agreement]
[Enhancement Agreement] [Swap Agreement] [Sale Agreement]. Such opinion may be
qualified as an opinion only on the laws of the State of New York and the
federal law of the United States, and in respect only of the due incorporation
and due existence of the Depositor, the laws of the State of Delaware. To the
extent that such firm relies upon the opinion of other counsel in rendering any
portion of its opinion, the opinion of such other counsel shall be attached to
and delivered with the opinion of such firm that is delivered to you.
(e) [The Underwriters shall have received an opinion, dated the
Closing Date, of [__________], special counsel to the Depositor, addressed
to the Depositor and satisfactory to the
9
Enhancer, the Rating Agencies and the Underwriters, with respect to
certain matters relating to the transfer of the Underlying Securities to
the Trust and the perfection of the Trust's security interest in the
Underlying Securities, and such counsel shall have consented to reliance
on such opinion by the Enhancer, the Rating Agencies and the Underwriters
as though such opinion had been addressed to each such party.]
(f) [The Swap Counterparty shall have furnished to the Underwriters
a written opinion as counsel to the Swap Counterparty, addressed to the
Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
(i) The Swap Counterparty has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of [_________], with corporate power to own its
properties, to conduct its business as described in the Prospectus
and to enter into and perform its obligations under the Swap
Agreement; and
(ii) The Swap Agreement has been duly authorized, executed and
delivered by the Swap Counterparty and, assuming the due
authorization, execution and delivery of such agreement by the other
party thereto, constitutes the legal, valid and binding agreement of
the Swap Counterparty, enforceable against Swap Counterparty in
accordance with its terms, subject as to enforceability to (x)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally, and (y) general principles of equity [regardless of
whether enforcement is sought in a proceeding in equity or at law)].
(g) [CCMC's internal counsel], shall have furnished to the
Underwriters a written opinion, as counsel to CCMC, addressed to the
Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
(i) CCMC has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of [ ___
], with corporate power to own its properties, to conduct its
business as described in the Prospectus and to enter into and
perform its obligations under the Administration Agreement [and the
Sale Agreement]; and
(ii) [Each of] the Administration Agreement [and the Sale
Agreement] has been duly authorized, executed and delivered by CCMC
and, assuming the due authorization, execution and delivery of such
agreement by the other party thereto, constitutes the legal, valid
and binding agreement of CCMC, enforceable against CCMC in
accordance with its terms, subject as to enforceability to (x)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally, and (y) general principles of equity (regardless of
whether enforcement is sought in equity or at law).
(h) The Underwriters shall have received an opinion of counsel to
the Trustee, dated the Closing Date, addressed to the Underwriters and in
form and scope satisfactory to counsel to the Underwriters, to the effect
that:
(i) The Trustee has duly authorized, executed and delivered
the [Trust Agreement], which constitutes the legal, valid and
binding agreement of the Trustee, enforceable against the Trustee in
accordance with its terms, subject, as to enforcement of remedies,
to (x) applicable bankruptcy, insolvency, reorganization, and other
similar laws affecting the rights of creditors generally, and (y) to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(ii) Upon the execution, countersignature and delivery of the
[Class _] [Series _] Certificates by the Trustee on the Closing
Date, the [Class _] [Series _] Certificates will have been duly
issued on behalf of the Trust;
(iii) The execution and delivery by the Trustee of the [Trust
Agreement] and the performance by the Trustee of its obligations
thereunder, including the execution and countersignature of the
[Class _] [Series _] Certificates, do not conflict with or result in
a violation of the certificate of incorporation or by-laws of the
Trustee;
10
(iv) The Trustee has full power and authority to execute and
deliver the [Trust Agreement] and to perform its obligations
thereunder;
(v) There are no actions, proceedings or investigations
pending or threatened against or affecting the Trustee before or by
any court, arbitrator, administrative agency or other governmental
authority which, if decided adversely to the Trustee, would
materially and adversely affect the ability of the Trustee to carry
out the transactions contemplated in the [Trust Agreement]; and
(vi) No consent, approval or authorization of, or
registration, declaration or filing with, any court or governmental
agency or body of the United States of America or any state thereof
is required for the execution, delivery or performance by the
Trustee of the [Trust Agreement].
(i) The Underwriters shall have received an opinion or opinions,
dated the date of the Closing Date, of _______________, counsel for the
Representative, with respect to the issue and sale of the [Class _]
[Series _] Certificates, the Registration Statement, this Agreement, the
Prospectus and such other related matters as the Underwriters may
reasonably require.
(j) The Underwriters shall have received an opinion dated the
Closing Date, of __________________________, special counsel for the
Enhancer in form and scope satisfactory to counsel for the Underwriters,
to the effect that:
(i) The Enhancer is duly incorporated, validly existing, and
in good standing under the laws of [the State of New York] [the
United States];
(ii) The Enhancer has the corporate power to execute and
deliver, and to take all action required of it under the Enhancement
Agreement;
(iii) The execution, delivery and performance by the Enhancer
of the Enhancement Agreement does not require the consent or
approval of, the giving of notice to, the prior registration with,
or the taking of any other action in respect of any state or other
governmental agency or authority which has not previously been
obtained or effected;
(iv) The Enhancement Agreement has been duly authorized,
executed and delivered by the Enhancer and constitutes the legal,
valid and binding agreement of the Enhancer, enforceable against the
Enhancer in accordance with its terms subject, as to enforcement, to
(x) bankruptcy, reorganization, insolvency, moratorium and other
similar laws relating to or affecting the enforcement of creditors'
rights generally, including, without limitation, laws relating to
fraudulent transfers or conveyances, preferential transfers and
equitable subordination, presently or from time to time in effect
and general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law), as
such laws may be applied in any such proceeding with respect to the
Enhancer, and (y) the qualification that the remedy of specific
performance and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which
any proceedings with respect thereto may be brought;
(v) The Enhancement Agreement is not required to be registered
under the Securities Act; and
(vi) The information in the Prospectus concerning the Enhancer
and the Enhancement Agreement does not contain any untrue statement
of a material fact and does not omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.]
(k) The Depositor shall have furnished to the Underwriters a
Certificate, dated the Closing Date, of its Chairman of the Board, its
President or a Vice President stating that:
(i) The representations and warranties of the Depositor in
Section 1 are true and correct as of the Closing Date; and the
Depositor has complied with all its agreements contained herein; and
11
(ii) They have carefully examined the Registration Statement
and the Prospectus and, in their opinion (x) as of the Effective
Date, the Registration Statement and Prospectus did not include any
untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (y) since the Effective Date
no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or the
Prospectus.
(l) The Trustee shall have furnished to the Underwriters a
certificate of the Trustee, signed by one or more duly authorized officers
of the Trustee, dated the Closing Date, as to the due authorization,
execution and delivery of the [Trust Agreement] by the Trustee and the
acceptance by the Trustee of the Trusts created thereby and the due
execution, countersignature and delivery of the [Class _] [Series _]
Certificates by the Trustee thereunder and such other matters as the
Representative shall reasonably request.
[(m) An Indemnification Agreement shall have been entered into among
the Enhancer, the Depositor and the Underwriters, representing to the
Underwriters and the Depositor, among other representations, that the
information under the captions ["The Enhancer" "Description of the [Class
_] [Series _] Certificates - - the Enhancement Agreement" and "Financial
Statements of Enhancer"] in the Prospectus Supplement was approved by the
Enhancer and does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
[(n) The Enhancement Agreement shall have been issued by the
Enhancer and shall have been duly countersigned by an authorized agent of
the Enhancer, if so required under applicable state law or regulation.]
(o) On the Closing Date, the Underwriters shall have received
evidence satisfactory to them that, on or before the Closing Date, UCC-l
financing Statements have been filed [in the office of the Secretary of
State of the State(s) of __________] [and] [the District of Columbia] in
the appropriate office or offices in such other locations as may be
specified in the opinion of counsel delivered pursuant to Section 6(e)
hereof and in such other jurisdictions as your counsel deems appropriate,
reflecting the interest of the Trust in the Underlying Securities now
existing, any additional balances hereafter created and in the other
assets of the Trust.
(p) The [Class _] [Series _] Certificates shall have been rated
["_"] and ["_"] by [the Rating Agencies, respectively].
(q) [The Underwriters shall have received at or before the Closing
Date, (i) from _____________________, letters, dated as of the date of
this Agreement, substantially in the form of Exhibit A hereto (the
"Initial Comfort Letters") and bring down letters dated as of the Closing
Date, (A) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (B) stating the conclusions
and findings of such firm with respect to the financial information and
other matters covered by its letter, and (C) in the case of the bring-down
letters, confirming in all material respects the conclusions and findings
set forth in the Initial Comfort Letters and (ii) from ___________,
letters, dated as of the date of this Agreement, substantially in the form
of Exhibit B hereto, (A) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission and (B)
stating the conclusions and findings of such firm with respect to the
matters covered by its letter.]
(r) Prior to the Closing Date, counsel for the Representative shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the [Class _] [Series _] Certificates as herein
contemplated and related proceedings or in order to evidence the accuracy
and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained, and all
proceedings taken by the Depositor in connection with the issuance and
sale of the [Class _] [Series _] Certificates as herein contemplated shall
be satisfactory in form and substance to the Underwriter and counsel for
the Representative.
12
(s) Subsequent to the execution and delivery of this Agreement none
of the following shall have occurred: (i) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices shall
have been established on either of such exchanges or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction; (ii) a banking moratorium
shall have been declared by Federal or state authorities; (iii) the United
States shall have become engaged in hostilities, there shall have been an
escalation of hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States; or
the declaration by the United States of a national emergency or war; (v)
there has occurred any other calamity or crisis in the United States or
elsewhere (including any attacks by terrorists or states sponsoring
terrorism) resulting in material disruption in the U.S. financial markets
or (v) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets of the United States
shall be such) as to make it, in the judgment of the Underwriters,
impractical or inadvisable to proceed with the public offering or delivery
of the [Class _] [Series _] Certificates on the terms and in the manner
contemplated in the Prospectus.
If any condition specified in this Section 6 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notice to the Depositor at any time at or prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Section 7.
All opinions, letters, evidence and Certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Representative.
Section 7. Payment of Expenses. The Depositor agrees to pay: (a) the costs
incident to the authorization, issuance, sale and delivery of the [Class _]
[Series _] Certificates and any taxes payable in connection therewith; (b) the
costs incident to the preparation, printing and filing under the Securities Act
of the Registration Statement and any amendments and exhibits thereto; (c) the
costs of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in each
case, exhibits), the Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus or any document incorporated by reference therein,
all as provided in this Agreement; (d) the costs of reproducing and distributing
this Agreement; (e) the fees and expenses of qualifying the [Class _] [Series _]
Certificates under the securities laws of the several jurisdictions as provided
in Section 5 (g) and of preparing, printing and distributing a Blue Sky
Memorandum and a Legal Investment Survey (including related fees and expenses of
counsel to the Representative); (f) any fees charged by rating agencies for
rating the [Class _] [Series _] Certificates; and (g) all other costs and
expenses incident to the performance of the obligations of the Depositor
(including costs and expenses of your counsel); provided that, except as
provided in this Section 7, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the [Class _] [Series _] Certificates which they may sell and the expenses of
advertising any offering of the [Class _] [Series _] Certificates made by the
Underwriters.
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 6 or Section 11, the Depositor shall reimburse the
Underwriters for all reasonable out-of-pocket expenses, including fees and
disbursements of [_______________], counsel for the Representative.
Section 8. Indemnification and Contribution.
(a) The Depositor agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls any of the Underwriters
within the meaning of Section 15 of the Securities Act from and against
any and all loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of the [Class
_] [Series _] Certificates, to which the Underwriters or any such
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, (ii)
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, (iii) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus or (iv) the omission or alleged
13
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and shall
reimburse the Underwriters and each such controlling person promptly upon
demand for any legal or other expenses reasonably incurred by the
Underwriters or such controlling person in connection with investigating
or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Depositor shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Prospectus or the
Registration Statement in reliance upon and in conformity with written
information furnished to the Depositor by or on behalf of any of the
Underwriters specifically for inclusion therein; and provided further that
as to any Preliminary Prospectus this indemnity shall not inure to the
benefit of any Underwriter or any controlling person on account of any
loss, claim, damage, liability or action arising from the sale of the
[Class _] [Series _] Certificates to any person by such Underwriter if
such Underwriter failed to send or give a copy of the Prospectus, as
amended or supplemented, to that person within the time required by the
Securities Act, and the untrue statement or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
in the Preliminary Prospectus was corrected in the Prospectus, unless such
failure resulted from non-compliance by the Depositor with Section 5(c).
For purposes of the last proviso to the immediately preceding sentence,
the term "Prospectus" shall not be deemed to include the documents
incorporated therein by reference, and none of the Underwriters shall be
obligated to send or give any supplement or amendment to any document
incorporated therein by reference to any person other than a person to
whom an Underwriter had delivered such incorporated document or documents
in response to a written request therefor. The foregoing indemnity
agreement is in addition to any liability which the Depositor may
otherwise have to the Underwriters or any controlling person of any of the
Underwriters.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Depositor, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Depositor within the meaning of Section 15 of the Securities Act against
any and all loss, claim, damage or liability, or any action in respect
thereof, to which the Depositor or any such director, officer or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or (ii) 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 or on
behalf of such Underwriter specifically for inclusion therein, and shall
reimburse the Depositor and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the
Depositor or any director, officer or controlling person in connection
with investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which
such Underwriter may otherwise have to the Depositor or any such director,
officer or controlling person.
(c) Promptly after receipt by any indemnified party under this
Section 8 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against any indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify an indemnifying
party shall not relieve it from any liability which it may have under this
Section 8 except to the extent it has been materially prejudiced by such
failure and, provided further, that the failure to notify any indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 8 for any legal or other expenses
14
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless: (1) the employment thereof has been specifically
authorized by the indemnifying party in writing; (ii) such indemnified
party shall have been advised by such counsel that there may be one or
more legal defenses available to it which are different from or additional
to those available to the indemnifying party and in the reasonable
judgment of such counsel it is advisable for such indemnified party to
employ separate counsel; or (iii) the indemnifying party has failed to
assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however,
the indemnifying party shall not, in connection with any one such action
or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate
firm of attorneys (in addition to local counsel) at any time for all such
indemnified parties, which firm shall be designated in writing by the
Underwriters, if the indemnified parties under this Section 8 consist of
the Underwriters or any of their controlling persons, or by the Depositor,
if the indemnified parties under this Section 8 consist of the Depositor
or any of the Depositor's directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 8(a) and (b), shall use its best efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if
there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement
or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or (1) 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 Underwriters on the other from the offering of the [Class _]
[Series _] Certificates or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law or if the indemnified party
failed to give the notice required under Section 8(c), in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Depositor on the one
hand and the Underwriters on the other with respect to the statements or
omissions which resulted in such lose, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations.
The relative benefits of the Underwriters and the Depositor shall be
deemed to be in such proportion so that the Underwriters are responsible
for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the Final Prospectus bears to the
public offering price appear.
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
15
supplied by the Depositor or by one of the Underwriters, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission and other
equitable considerations.
The Depositor and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purposes) or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of
the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim.
In no case shall any Underwriter (except as may be provided in any
agreement among the Underwriters relating to the offering of the [Class _]
[Series _] Certificates) be responsible for any amount in excess of the
Underwriting discount applicable to the [Class _] [Series _] Certificates
purchased by such Underwriter hereunder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(e) The Underwriters confirm that the information set forth [(i) in
the last paragraph on the cover page, (ii) in the first paragraph on the
inside cover page and (iii) in the second to last paragraph under the
caption "Underwriting"] in the Prospectus Supplement are correct and
constitute the only information furnished in writing to the Depositor by
or on behalf of the Underwriters specifically for inclusion in the
Registration Statement and the Prospectus.
Section 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in Certificates of officers of the Depositor submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters or controlling
persons thereof, or by or on behalf of the Depositor and shall survive delivery
of any [Class _] [Series _] Certificates to the Underwriters.
[Section 10. Default by One or More of the Underwriters. If one or more of
the Underwriters participating in the public offering of the [Class _] [Series
_] Certificates shall fail at the Closing Date to purchase the [Class _] [Series
_] Certificates which it is (or they are) obligated to purchase hereunder (the
Defaulted [Class _] [Series _] Certificates), then the non-defaulting
Underwriters shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted [Class _]
[Series _] Certificates in such amounts as may be agreed upon and upon the terms
herein set forth. If, however, the Underwriters have not completed such
arrangements within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted [Class _]
[Series _] Certificates does not exceed (10%) of the aggregate
principal amount of the [Class _] [Series _] Certificates to be
purchased pursuant to this Agreement, the non-defaulting
Underwriters named in this Agreement shall be obligated to purchase
the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting
obligations of all such non-defaulting Underwriters, or
(ii) if the aggregate principal amount of Defaulted [Class _]
[Series _] Certificates exceeds [10%] of the aggregate principal
amount of the [Class _] [Series _] Certificates to be purchased
pursuant to this Agreement, this Agreement shall terminate, without
any liability on the part of any non-defaulting Underwriters.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from the liability with respect to any default of such Underwriter
under this Agreement.
In the event of a default by any Underwriters as set forth in this Section
10, either the Underwriters or the Depositor shall have the right to postpone
the Closing Date for a period not exceeding five Business Days in order
16
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.]
Section 11. Termination of Agreement. The Underwriters may terminate this
Agreement immediately upon notice to the Depositor, at any time at or prior to
the Closing Date if any of the events or conditions described in Section 6(v) of
this Agreement shall occur and be continuing. In the event of any such
termination, the covenant set forth in subsection 5(d), the provisions of
Section 7 [, the indemnity agreement set forth in Section 8,] and the provisions
of Sections 9 and 14 shall remain in effect.
Section 12. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to [_______________, _______________,
Attention: _______________ (Fax: _______________)];
(b) if to the Depositor, shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Depositor set forth in the
Registration Statement, Attention: Corporate Secretary, Comcertz ABS
Corporation (Fax: 000-000-0000);
Section 13. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters and
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 representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any of the Underwriters within the meaning of Section 15 of
the Securities Act, and for the benefit of directors of the Depositor, officers
of the Depositor who have signed the Registration Statement and any person
controlling the Depositor within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 13, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
Section 14. Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the [Class _] [Series
_] Certificates and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
Section 15. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, "business day" means any day on which the New York
Stock Exchange, Inc. is open for trading.
Section 16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 17. Counterparts. This Agreement may be executed in counterparts
and, if executed in more than one counterpart, the executed counterparts shall
each be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
Section 18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[Signature Page Follows]
17
If the foregoing correctly sets forth the agreement between the Depositor
and the Underwriters, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
COMCERTZ ABS CORPORATION
By:
-----------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
of the date first above written:
[COMMERZBANK CAPITAL MARKETS CORP.]
[Acting on its own behalf and as Representative of the
several Underwriters referred to in the foregoing
Agreement.]
By:
-------------------------------------
Name:
Title:
18
SCHEDULE A
Initial Principal Amount of
[Class __] [Series _] Certificates
Name of Underwriter Purchased by Underwriter Purchase Price to Underwriter
---------------------- ------------------------------------ ---------------------------------
$ $
-------------------- ---------------- --------------------
$ $
-------------------- ---------------- --------------------
$ $
-------------------- ---------------- --------------------
$ $
-------------------- ---------------- --------------------
Total $ $
---------------- --------------------
19
