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EXHIBIT 1.1
CORPORATE ASSET BACKED CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
___, 2001
From time to time, Corporate Asset Backed Corporation, a Delaware
corporation (the "Depositor"), may enter into, and if applicable, cause the
Trusts referred to (and as defined) below to enter into, one or more
underwriting agreements (each, an "Underwriting Agreement") that provide for the
sale of notes (the "Notes") evidencing indebtedness of the trusts created by the
Depositor (the "Trusts") or certificates evidencing beneficial ownership
interests in such Trusts (the "Certificates" and, together with the "Notes", the
"Offered Securities"), or both, to the several underwriters named therein (the
"Underwriters"). These Standard Provisions may be incorporated by reference in
any such Underwriting Agreement. The particular Underwriting Agreement into
which these Standard Provisions are incorporated, including these Standard
Provisions, is sometimes referred to in these Standard Provisions as "this
Agreement." Terms defined in the Underwriting Agreement are used in these
Standard Provisions as so defined. The particular Offered Securities that are to
be offered pursuant to the particular Underwriting Agreement are referred to in
these Standard Provisions as the "Designated Securities."
The Depositor has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (Registration No. 333-61522),
including a prospectus, relating to the Offered Securities and has filed with,
or transmitted for filing to, or shall promptly after the execution of this
Agreement file with or transmit for filing to, the Commission a prospectus
supplement (as amended to the date of this Agreement, the "Prospectus
Supplement") specifically relating to the Designated Securities referred to in
the Underwriting Agreement pursuant to Rule 424(b) under the Securities Act of
1933, as amended (the "Securities Act"). The term "Registration Statement" means
the various parts of the registration statement, including the exhibits thereto
(other than the Form T-1) and the documents incorporated by reference in the
prospectus contained in the registration statement at the time such part of the
registration statement became effective, each as amended to the date of this
Agreement. If the Designated Securities consist solely of Certificates, the term
"Base Prospectus" means the base prospectus forming a part of the Registration
Statement and relating only to Certificates included in the Registration
Statement, as amended to the date of this Agreement. If the Designated
Securities consist of Certificates and Notes, the term "Base Prospectus" means
the base prospectus forming a part of the Registration Statement and relating to
Certificates and Notes included in the Registration Statement. The term
"Prospectus" means the Base Prospectus together with the Prospectus Supplement,
as amended to the date of this Agreement. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the
Designated Securities, together with the Base Prospectus. As used herein, the
terms "Base Prospectus," "Prospectus" and "preliminary prospectus" shall include
in each case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Base Prospectus by the Depositor with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
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1. Representations and Warranties. The Depositor, and if the Trust is a
party to this Agreement, the Trust, represents and warrants to and agrees with
each of the Underwriters as of the date of this Agreement and as of the time of
delivery of the Designated Securities that:
(a) The Registration Statement and any post-effective amendment to the
Registration Statement have become effective in the form previously delivered to
the Underwriters; no other document with respect to the Registration Statement
has been filed or transmitted for filing with the Commission (other than
prospectuses filed under Rule 424(b) under the Securities Act); and no stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment to the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied when it
became effective or filed, as applicable, or will comply when so effective or
filed in all material respects with the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) none of such
documents, when they became or become effective or were or are filed with the
Commission, contained or will contain any untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply, and any further amendments or supplements
to the Registration Statement or the Prospectus will comply, in all material
respects with the requirements of the Securities Act and the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the applicable rules and
regulations of the Commission thereunder, and (iv) the Registration Statement
and any amendment thereto, as of its effective date, and the Prospectus and any
amendment or supplement thereto, as of its date of filing, do not and will not
contain any untrue statement of a material fact or omitted or will omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading and, as of the Closing Date, no such document
will 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, except that the representations and
warranties set forth in this paragraph do not apply (A) to statements or
omissions in the Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Depositor in writing by such
Underwriter through the Manager expressly for use therein, (B) to that part of
the Registration Statement that constitutes the Statement of Eligibility (Form
T-1) under the Trust Indenture Act of the Trustee under the Trust Agreement, or
(C) to that part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Indenture Trustee
under the Indenture.
(c) This Agreement has been duly authorized, executed and delivered by
the Depositor, and if the Trust is a party to this Agreement, this Agreement has
been authorized by all necessary action in respect of the Trust and executed and
delivered by the Trustee on behalf of the Trust.
(d) The Trust Agreement has been duly qualified under the Trust
Indenture Act and has been duly authorized by the Depositor and, assuming due
authorization, execution and delivery thereof by the Trustee, upon execution and
delivery of the Trust Agreement by the Depositor, the Trust Agreement will
constitute a valid and legally binding agreement of the Depositor, enforceable
in accordance with its terms, subject to bankruptcy, insolvency,
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reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
(e) The Trust (i) if the Trust is a party to this Agreement, is, and if
the Trust is not a party to this Agreement, as of the Closing Date, will be, (A)
in the case of a Trust formed under the laws of the State of New York, a valid
common law trust under the laws of the State of New York, and (B) in the case of
a Trust formed under the laws of the State of Delaware, a business trust duly
formed, validly existing and in good standing under the laws of the State of
Delaware; (ii) has or will have, as the case may be, the full power and
authority to own its property and to conduct its business as described in the
Prospectus and (iii) is or will be, as the case may be, duly qualified to
transact business and in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property required such
qualification, except to the extent that failure to be so qualified or be in
good standing would not have a material adverse effect on the Depositor.
(f) If the Trust is a party to this Agreement, the Trust possesses, and
if the Trust is not a party to this Agreement, as of the Closing Date, the Trust
will possess, all material licenses, certificates, authorizations, or permits
required to be issued by any state, federal or foreign regulatory agencies or
bodies in order to conduct the business now operated by it, and if the Trust is
a party to this Agreement, the Trust has not received any notice of proceedings
relating to the revocation or modification of any such license, certificate,
authority or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely affect
the condition, financial otherwise, or the earnings, business affairs or
business prospects of the Trust.
(g) Upon delivery of the Designated Securities to the Underwriters
pursuant to this Agreement, the Underwriters will have good and marketable title
to the Designated Securities, free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest (collectively
"Liens").
(h) If the Designated Securities include Notes, the Indenture has been
duly qualified under the Trust Indenture Act, and the Depositor has caused the
Trustee to duly authorize the Indenture on behalf of the Trust and, assuming due
authorization, execution and delivery thereof by the Indenture Trustee, upon
execution and delivery of the Indenture by the Trustee, the Indenture will
constitute a valid and legally binding agreement of the Trust, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(i) The Depositor has caused the Trustee to duly authorize the
Certificates on behalf of the Trust and, when the Certificates have been
executed and authenticated in accordance with the provisions of the Trust
Agreement and delivered to and paid for by the Underwriters in accordance with
the provisions of this Agreement, the Certificates will be validly issued and
outstanding and will evidence the entire undivided beneficial interest in the
Trust and entitle the holders thereof to the benefits provided by the Trust
Agreement; and such Trust Agreement and Certificates will conform to the
descriptions thereof contained in the Prospectus.
(j) If the Designated Securities include Notes, the Depositor has
caused the Trustee to duly authorize the Notes on behalf of the Trust and, when
the Notes have been executed and
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authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the provisions of this
Agreement, the Notes will be valid and legally issued, fully paid and binding
obligations of the Trust, enforceable in accordance with their respective terms,
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles, and will entitle the holders thereof to the benefits
provided by the Indenture; and the Indenture and such Notes will conform to the
descriptions thereof contained in the Prospectus.
(k) The Depositor has caused the Trustee to duly authorize each Swap
Agreement, Related Agreement and Credit Enhancement Agreement to which the Trust
is a party and, assuming due authorization, execution and delivery thereof by
each other party thereto, upon execution and delivery of each such Swap
Agreement, Related Agreement and Credit Enhancement Agreement by the Trustee,
each such agreement will constitute a valid and legally binding agreement
enforceable against the Trust in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and each such Swap Agreement, Related Agreement and Credit
Enhancement Agreement will conform to the descriptions thereof contained in the
Prospectus.
(l) The statements set forth in the Base Prospectus under the captions
"Formation of the Trusts," "Description of the Certificates" and "Description of
the Trust Agreement," or under the captions "Formation of the Trusts,"
"Description of the Notes and Certificates," "Description of the Trust
Agreement" and "Description of the Indenture," as applicable, insofar as they
purport to constitute a summary of the terms of the agreements referred to
therein, and under the caption "Underwriting," insofar as they purport to
describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair.
(m) The execution and delivery by the Trust of, and the performance by
the Trust of its obligations under this Agreement, the Trust Agreement, the
Certificates, the Indenture, if applicable, the Notes, if applicable, and any
Swap Agreements, Related Agreements and Credit Enhancement Agreements to which
it is a party will not contravene any provision of applicable law or the
constitutional documents of the Trust, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Trust or any
agreement or other instrument to which the Trust is a party or by which it or
any of its property or assets is bound.
(n) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Depositor or the Trust under the Federal
laws of the United States, the laws of the State of New York, the General
Corporation Law of the State of Delaware, and the laws under which the Trust was
or is to be formed, for the issuance, sale and delivery of the Designated
Securities by the Trust to the Depositor and the sale and delivery of the
Designated Securities by the Depositor to the Underwriters or the execution,
delivery or performance by the Depositor or the Trust, as applicable, of this
Agreement, the Trust Agreement, the Certificates, the Indenture, if applicable,
the Notes, if applicable, and any Swap Agreement, Related Agreement and Credit
Enhancement Agreement to which it is a party have been obtained or made, except
such as may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Designated Securities.
(o) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not occurred any material
adverse change, or any
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development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Depositor.
(p) There are no legal or governmental proceedings pending or, to the
best knowledge of the Depositor or the Trust, threatened to which the Depositor
or the Trust is a party or to which any of the property or assets of the
Depositor or the Trust is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required.
(q) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(r) Neither the Depositor nor the Trust is and, after giving effect to
the offering and sale of the Designated Securities and the application of the
proceeds thereof as described in the Prospectus, neither will be required to
register as an "investment company" under the Investment Company Act of 1940, as
amended.
2. Additional Representations and Warranties of the Depositor. The
Depositor represents and warrants to and agrees with each of the Underwriters as
of the date of this Agreement and as of the time of delivery of the Designated
Securities that:
(a) The Depositor has been duly incorporated, is an existing
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Depositor.
(b) If the Trust is purchasing the Underlying Securities or any other
Trust Assets directly from the Depositor, at the time of the execution and
delivery of the Trust Agreement, the Depositor (i) will have good and marketable
title to the Underlying Securities or such Trust Assets being transferred by it
to the Trustee pursuant thereto, free and clear of any Liens, (ii) will not have
assigned to any person any of its right, title or interest in such Underlying
Securities or such Trust Assets or in the Trust Agreement and (iii) will have
the power and authority to transfer such Underlying Securities or such Trust
Assets to the Trustee, and upon execution and delivery of the Trust Agreement
and delivery of the Underlying Securities or such Trust Assets to the Trustee as
provided in the Trust Agreement, the Trustee will (assuming that it has not
received notice of any adverse claims to such Underlying Securities or such
Trust Assets) be a protected purchaser of such Underlying Securities or such
Trust Assets, free of any adverse claim, and will have acquired ownership of all
of the Depositor's right, title and interest in and to the related Underlying
Securities or such Trust Assets.
(c) The Depositor possesses all material licenses, certificates,
authorizations, or permits required to be issued by any state, federal or
foreign regulatory agencies or bodies in order to conduct the business now
operated by it, and the Depositor has not received any notice
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of proceedings relating to the revocation or modification of any such license,
certificate, authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the condition, financial otherwise, or the earnings, business
affairs or business prospects of the Depositor.
3. Terms of Public Offering. The Depositor, and if the Trust is a party
to this Agreement, the Trust, is advised by the Manager that the Underwriters
propose to make a public offering of their respective portions of the Designated
Securities as soon after this Agreement has been entered into as in the
Manager's judgment is advisable. The terms of the public offering of the
Designated Securities are set forth in the Prospectus.
4. Payment and Delivery. Payment for the Designated Securities shall be
made to the Depositor, or if the Trust is a party to this Agreement, the Trust,
in Federal or other funds immediately available at the time and place set forth
in the Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Designated Securities registered in
such names and in such denominations as the Manager shall request in writing not
less than two full business days prior to the date of delivery, with any
transfer taxes payable in connection with the transfer of the Designated
Securities to the Underwriters duly paid.
5. Conditions to the Underwriters' Obligations. The several obligations
of the Underwriters are subject to the following conditions:
(a) Each of the representations and warranties and other statements of
the Depositor, and if the Trust is a party to this Agreement, the Trust, in this
Agreement shall, at the time of delivery of the Designated Securities, be true
and correct as if made at such time (except to the extent such representations,
warranties and statements are expressly made as of any other time, in which case
such representations, warranties and statements shall have been true and correct
at such other time).
(b) The Depositor, and if the Trust is a party to this Agreement, the
Trust, shall have performed all of their respective obligations under this
Agreement to be performed on or prior to the time of delivery.
(c) The Prospectus as amended or supplemented in relation to the
Designated Securities shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the rules
and regulations under the Securities Act and in accordance with Section 6(b)
hereof; 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; and all requests for
additional information on the part of the Commission shall have been complied
with to the Underwriters' reasonable satisfaction.
(d) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by a duly authorized officer of
the Depositor, to the effect set forth in Section 5(a) above and to the effect
that the representations and warranties and other statements of the Depositor
contained in this Agreement are true and correct in all material respects as of
the Closing Date and that the Depositor has complied with all of the agreements
and satisfied all of the conditions in all material respects on its part to be
performed or satisfied hereunder on or before the Closing Date.
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(e) If the Trust is a party to this Agreement, the Underwriters shall
have received on the Closing Date a certificate, dated the Closing Date and
signed by an authorized signatory of the Trust, to the effect set forth in
Section 5(a) above and to the effect that the representations and warranties and
other statements of the Trust contained in this Agreement are true and correct
in all material respects as of the Closing Date and that the Trust has complied
with all of the agreements and satisfied all of the conditions in all material
respects on its part to be performed or satisfied hereunder on or before the
Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge, following appropriate due diligence, as to
proceedings threatened.
(f) An opinion, dated the Closing Date, addressed to the Underwriters
in substantially the form attached as Exhibit A to these Standard Provisions,
shall be received by the Underwriters from counsel acceptable to the
Underwriters.
(g) An opinion, dated the Closing Date, addressed to the Underwriters
confirming the disclosure set forth under the captions "United States Federal
Income Tax Consequences" in the Prospectus and the tax status of the Trust as
specified in the Prospectus and relating to such other matters as the
Underwriters shall reasonably require, shall be received by the Underwriters
from counsel acceptable to the Underwriters.
(h) If the Trust is a Delaware business trust, an opinion, dated the
Closing Date, addressed to the Underwriters relating to such matters as the
Underwriters shall reasonably require, shall be received by the Underwriters
from Delaware counsel acceptable to the Underwriters.
(i) Each of the Trust Agreement, any Swap Agreement, any Related
Agreement, any Credit Enhancement Agreement and, if the Designated Securities
include Notes, the Indenture, shall have been duly authorized, executed and
delivered.
(j) Neither the issuer of any securities that constitute a part of the
property of the Trust nor any of its subsidiaries shall have sustained since the
date of its latest audited financial statements any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in filings by such
issuer with the Commission prior to the date of this Agreement; (ii) since the
respective dates as of which information is given in filings by such issuer with
the Commission prior to the date of this Agreement, there shall not have been
any change in the capital stock or long-term debt of such issuer or any of its
subsidiaries or any change, or any development involving a prospective change,
in or affecting, as applicable, the general affairs, management, financial
position, prospects, stockholders' equity or results of operations of such
issuer and its subsidiaries, otherwise than as set forth or contemplated in
filings by such issuer with the Commission prior to the date of this Agreement;
and (iii) since the respective dates as of which information is given in the
Prospectus as amended prior to the date of this Agreement, there shall not have
been any change, or any development involving a prospective change, in or
affecting, as applicable, the general affairs, management, financial position,
prospects, or results of operations of the Depositor and its subsidiaries and
the Trust, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i), (ii) or (iii), is in
the judgment of the Underwriters so material and adverse as to make it
impracticable or inadvisable
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to proceed with the public offering or the delivery of the Designated Securities
on the terms and in the manner contemplated in the Prospectus.
(k) On or after the date of this Agreement, (i) no downgrading shall
have occurred in the rating accorded the debt securities or preferred stock of
any issuer of securities that constitute a part of the property of such Trust
(or, in the case of any such issuer that is an insurance company, such issuer's
financial strength or claims paying ability) or of a counterparty to any Swap
Agreement or the Designated Securities by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any such debt securities or preferred stock
(or, in the case of any such issuer that is an insurance company, such issuer's
financial strength or claims paying ability) or of the Designated Securities.
(l) On or after the date of this Agreement, there shall not have
occurred any of the following: (i) trading generally shall have been suspended
or materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Depositor, of any other trust established by the Depositor, of any issuer of
securities that constitute a part of the property of the Trust or of a
counterparty to any Swap Agreement shall have been suspended on any exchange or
in any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Manager, is material and adverse; and in the case
of any of the events specified in clauses (i) through (iv), such event, singly
or together with any other such event, makes it, in the judgment of the Manager,
impracticable to market the Designated Securities on the terms and in the manner
contemplated in the Prospectus.
(m) On the Closing Date, the Underwriters and their counsel shall have
been furnished with such other documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Designated Securities as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Trust in connection with the issuance and sale of the Designated
Securities as herein contemplated shall be satisfactory in form and substance to
the Underwriters and counsel for the Underwriters.
(n) The Designated Securities shall have been rated at least Baa by
▇▇▇▇▇'▇ Investors Service, Inc. and BBB by Standard & Poor's Ratings Services, a
Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc. (or any successor rating agencies),
and such ratings shall continue in effect at the time of delivery of the
Designated Securities.
6. Covenants of the Depositor. In further consideration of the
agreements of the Underwriters herein contained, the Depositor covenants with
each Underwriter as follows:
(a) To furnish the Manager, without charge, for itself as many copies
of the Registration Statement (including exhibits thereto) as the Manager may
reasonably request and
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for delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish the Manager in New York
City, without charge, prior to 10:00 a.m. New York City time on the business day
next succeeding the date of this Agreement and during the period mentioned in
Section 6(e) below, as many copies of the Prospectus, any documents incorporated
by reference therein and any supplements and amendments thereto or to the
Registration Statement as the Manager may reasonably request.
(b) 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 for so long as
the delivery of a prospectus is required in connection with the offering or sale
of the Designated Securities.
(c) To cause the Prospectus to be transmitted to the Commission for
filing pursuant to Rule 424(b) under the Securities Act by means reasonably
calculated to result in filing with the Commission pursuant to said rule.
(d) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Designated Securities, to furnish to the Manager
a copy of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager reasonably objects.
(e) If, during such period after the first date of the public offering
of the Designated Securities as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances in which they are made,
not misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters and to the dealers (whose names and addresses the Manager
will furnish to the Depositor) to which Designated Securities may have been sold
by the Manager on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances in which they are made, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(f) To endeavor to qualify the Designated Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request; provided, however, that the Depositor shall not be obligated
to qualify as a foreign corporation in any jurisdiction in which it is not so
qualified. In each jurisdiction in which the Designated Securities have been so
qualified, the Depositor will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for as long as may be necessary to complete the distribution of the
Designated Securities.
(g) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Depositor's counsel
in connection with the registration and delivery of the Designated Securities
under the Securities Act and all other fees or expenses in connection with
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the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Designated Securities to the Underwriters,
including any transfer or other taxes payable thereon, (iii) the cost of
printing or producing any Blue Sky or legal investment memorandum in connection
with the offer and sale of the Designated Securities under state law and all
expenses in connection with the qualification of the Designated Securities for
offer and sale under state law as provided in Section 5(f) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky or legal investment memorandum, (iv) the costs and expenses in
connection with the preparation of the Trust Agreement and, if the Designated
Securities include Notes, the Indenture, (v) the fees and disbursements of the
Depositor's counsel and accountants and of the Trustee and its counsel and if
the Designated Securities include Notes, of the Indenture Trustee and its
counsel, (vi) all filing fees and the reasonable fees and disbursements of
counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Designated Securities by the National
Association of Securities Dealers, Inc., (vii) any fees charged by the rating
agencies for the rating of the Designated Securities, (viii) all fees and
expenses in connection with the preparation and filing of the registration
statement on Form 8-A relating to the Designated Securities and all costs and
expenses incident to listing the Designated Securities on the New York Stock
Exchange, the American Stock Exchange, other national securities exchanges or
foreign stock exchanges or quotation of the Designated Securities on the NASDAQ
National Market, (ix) the costs and expenses of the Depositor relating to
investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Designated Securities, and (x) all other costs
and expenses incident to the performance of the obligations of the Depositor
hereunder for which provision is not otherwise made in this Section. It is
understood, however, that except as provided in this Section, Section 6, and the
last paragraph of Section 8 below, the Underwriters will pay all of their own
costs and expenses, including fees and disbursements of their counsel, and any
advertising expenses connected with any offers they may make.
(h) To notify the Manager immediately if, during such period after the
first date of the public offering of the Designated Securities as in the opinion
of counsel for the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, the Depositor
receives notice of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any prospectus relating to the
Certificates, of the suspension of the qualification of such Certificates for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such stop order
or of any such order preventing or suspending the use of any prospectus relating
to the Certificates or suspending any such qualification, to promptly use its
best efforts to obtain the withdrawal of such order.
(i) During the period beginning from the date of this Agreement and
continuing to and including the later of (i) the termination of trading
restrictions for the Designated Securities, as notified to the Depositor by the
Manager, and (ii) the time of delivery of the Designated Certificates, not to,
and not cause the Trust to, offer, sell, contract to sell or otherwise dispose
of any debt securities of any trust which mature more than one year after such
time of delivery and
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which are substantially similar to such Designated Securities (it being
understood that Designated Securities of another series based upon different
underlying securities shall be deemed not to be substantially similar to the
Designated Securities), without the prior written consent of the Underwriters.
7. Indemnity and Contribution.
(a) The Depositor, and if the Trust is a party to this Agreement, the
Trust, will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise directly
out of or are based directly upon an untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, the
Registration Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Designated Securities, or
any amendment or supplement thereto, or arise directly out of or are 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
will reimburse such Underwriter for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Depositor, and
if the Trust is a party to this Agreement, the Trust, shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
directly out of or is based directly upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus,
the Registration Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Designated Securities, or
any such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Depositor by such Underwriter expressly for
use therein.
(b) Each Underwriter will indemnify and hold harmless the Depositor,
and if the Trust is a party to this Agreement, the Trust, against any losses,
claims, damages or liabilities to which the Depositor, and if the Trust is a
party to this Agreement, the Trust, may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise directly out of or are based directly upon an untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Designated Securities, or any amendment or supplement thereto, or arise directly
out of or are based directly 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any preliminary prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Depositor by such Underwriter expressly for use therein; and
will reimburse the Depositor, and if the Trust is a party to this Agreement, the
Trust, for any legal or other expenses reasonably incurred by the Depositor, and
if the Trust is a party to this Agreement, the Trust, respectively, in
connection with investigating or defending any such action or claim as such
expenses are incurred.
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(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection, unless the indemnifying party shall have
been materially prejudiced by the failure to give such notice. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. Notwithstanding the immediately
preceding sentence, however, if the indemnified party shall have concluded that
there may be legal defenses available to it which are different from or
additional to those available to the indemnifying party, the indemnifying party
shall not have the right to direct the defense of such claim on behalf of the
indemnified party and the indemnified party shall have the right to assert such
legal defenses and to otherwise participate in the defense of such action. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought under this Section 6 (whether or
not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Depositor on the one hand and each Underwriter
on the other from the offering of the Designated Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Depositor, and if the Trust is a party to this Agreement, the
Trust, on the one hand and each Underwriter on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Depositor and,
if applicable, the Trust on the one hand and each Underwriter on the other shall
be deemed to be in the same proportion as the total net proceeds from the sale
of Securities (before deducting expenses) received by the Depositor and, if
applicable, the Trust bear to the total commissions or discounts received by
such Underwriter from the Depositor and, if
12
13
applicable, the Trust in respect thereof. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the
Depositor and, if applicable, the Trust on the one hand or by any Underwriter on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Depositor and,
if applicable, the Trust and each Underwriter agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were determined by
per capita allocation (even if all Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), an Underwriter shall not be required to contribute any amount in
excess of the amount by which the total public offering price at which the
Securities purchased by or through it were sold exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such 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 Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of each
of the Underwriters under this subsection (d) to contribute are several in
proportion to the respective purchases made by or through it to which such loss,
claim, damage or liability (or action in respect thereof) relates and are not
joint.
(e) The obligations of the Depositor and, if the Trust is a party to
this Agreement, the Trust under this Section 7 shall be in addition to any
liability which the Depositor and, if applicable, the Trust, may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of the Securities Act; and the
obligations of each Underwriter under this Section 7 shall be in addition to any
liability which such Underwriter may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Depositor and, if
applicable, the Trust, and to each person, if any, who controls the Depositor
and, if applicable, the Trust, within the meaning of the Securities Act.
8. Termination.
(a) This Agreement shall be subject to termination by notice given by
the Manager to the Depositor and, if the Trust is a party to this Agreement, the
Trust, if (i) after the execution and delivery of the Underwriting Agreement and
prior to the Closing Date (A) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (B) trading of any securities of the
Depositor, any other trust established by the Depositor, any issuer of
securities that constitute a part of the property of the Trust or counterparty
to any Swap Agreement shall have been suspended on any exchange or in any
over-the-counter market, (C) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (D) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any
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14
calamity or crisis that, in the judgment of the Manager, is material and adverse
and (ii) in the case of any of the events specified in clauses 8(i)(A) through
8(i)(D), such event, singly or together with any other such event, makes it, in
the judgment of the Manager, impracticable to market the Designated Securities
on the terms and in the manner contemplated in the Prospectus.
(b) If this Agreement is terminated pursuant to this Section 8, such
termination shall be without liability of any party to any other party.
9. Defaulting Underwriters. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase Designated Securities that it
has or they have agreed to purchase hereunder on such date (other than by reason
of any condition set forth in Section 5 hereof not being satisfied), and the
aggregate amount of Designated Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Designated Securities to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the amount of Designated Securities set forth opposite their respective
names in the Underwriting Agreement bears to the aggregate amount of Designated
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Manager may specify, to purchase the
Designated Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date; provided that in no event shall
the amount of Designated Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 9 by an amount
in excess of one-ninth of such amount of Designated Securities without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Designated Securities and the
aggregate amount of Designated Securities with respect to which such default
occurs is more than one-tenth of the aggregate amount of Designated Securities
to be purchased on such date, and arrangements satisfactory to the Manager and
the Depositor for the purchase of such Designated Securities are not made within
36 hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Depositor. In any such case
either the Manager or the Depositor shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Depositor, and if the
Trust is a party to this Agreement, the Trust, to comply with the terms or to
fulfill any of the conditions of this Agreement in all material respects, or if
for any reason the Depositor, and if the Trust is a party to this Agreement, the
Trust, shall be unable to perform its obligations under this Agreement, the
Depositor and, if applicable, the Trust, will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with
this Agreement or the offering contemplated hereunder.
10. Parties. This Agreement shall be binding upon the Underwriters, the
Depositor and, if the Trust is a party to this Agreement, the Trust, and their
respective successors. This Agreement and all conditions and provisions hereof
are intended to be for the sole and exclusive benefit of the Underwriters, the
Depositor and the Trust and their respective successors, and the
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15
controlling persons and officers and directors referred to in Section 7(e) and
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. In addition, this Agreement shall inure to the benefit of
any third party named herein as a third party beneficiary and only to the extent
provided herein. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Depositor and the Trust and their respective successors and
said controlling persons and officers and directors and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. No purchaser of the
Designated Securities from the Underwriters shall be deemed to be a successor by
reason merely of such purchase.
11. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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[OPINION OF COUNSEL FOR DEPOSITOR] EXHIBIT A
[insert Closing Date]
[UBS Warburg LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇]
[UBS PaineWebber Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇]
Re: CABCO Series 200 - Trust
Ladies and Gentlemen:
We have acted as special counsel to Corporate Asset Backed
Corporation (the "Depositor") and are rendering this opinion in connection with
the offer and sale by CABCO Series 200_-_ Trust (the "Trust") of [insert
currency and aggregate initial principal balance] aggregate principal balance of
certificates (the "Certificates"[ or the "Designated Securities"]), issued
pursuant to the Series Trust Agreement dated as of [insert Closing Date] (the
"Trust Agreement"), between the Depositor and [Name of Trustee], as trustee (in
such capacity, the "Trustee") [and [insert currency and aggregate initial
principal balance] aggregate principal balance of notes (the "Notes", and
together with the Certificates, the "Designated Securities") issued pursuant to
the Series Trust Indenture dated as of [insert Closing Date] (the "Indenture"),
between the Trust and [insert name of Indenture Trustee], as indenture trustee
(the "Indenture Trustee")]. The Certificates will evidence the entire undivided
beneficial interest in the Trust, the assets of which consist of $__________ in
aggregate principal amount of _______________ (the "Underlying Securities") [and
the rights of the Trust under a swap agreement entered into between the Trustee
on behalf of the Trust and [UBS AG, London branch] (the "Swap Agreement")] [and
[list any Related Agreements or Credit Enhancement Agreements and define them as
the "Related Agreements" and/or the "Credit Enhancement Agreements", as
applicable] and together with the Underlying Securities and any other trust
assets purchased by the Trustee on behalf of, or assigned by the Depositor to,
the Trust, the "Trust Assets")]. [The Notes will evidence debt obligations of
the Trust, secured by the Trust Assets.]
[The Depositor conveyed the Underlying Securities [and the
other Trust Assets] to the Trustee pursuant to the Trust Agreement and an
agreement of sale and assignment between the Trustee on behalf of the Trust and
the Depositor (the "Assignment Agreement").] [The Trustee purchased, on behalf
of the Trust, the Underlying Securities [and the other Trust Assets] [and
executed the [Swap Agreement][and the Related Agreements] [and Credit
Enhancement Agreements] on
17
behalf of the Trust]. The Designated Securities have been sold by the
[Trust][Depositor] to [UBS Warburg LLC][ and ][UBS PaineWebber Inc.], as
underwriters (the "Underwriters") pursuant to an Underwriting Agreement dated as
of [insert Pricing Date] (the "Underwriting Agreement") between the
[Trust][Depositor] and the Underwriters. The Underwriter[s] [is][are] [an]
affiliate[s] of UBS Americas Inc., the parent of the Depositor ("UBS Americas").
Capitalized terms used herein that are not otherwise defined herein shall have
the meanings assigned to such terms in the Trust Agreement[ or the Indenture, as
the case may be]. This opinion is furnished pursuant to Section 5(f) of the
Underwriting Agreement.
The Depositor filed a Registration Statement on Form S-3
(Registration No. 333-61522) with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933 (the "Securities Act"), that was
declared effective on _________, 2001 (such registration statement, as most
recently amended, being hereinafter referred to as the "Registration
Statement"). The Designated Securities were offered by the prospectus dated
_______, 2001 (the "Base Prospectus") and the prospectus supplement dated
______, 200_ (the "Prospectus Supplement" and, together with the Base
Prospectus, the "Prospectus") filed with the Commission pursuant to Rule 424(b)
of the General Rules and Regulations under the Securities Act.
We have participated in the preparation of (i) the Trust
Agreement, [(ii) the Indenture,] [(iii)] the Underwriting Agreement[, [(iv) the
Swap Agreement], [(v) the Related Agreements], [(vi) the Credit Enhancement
Agreements], [(vii) the Assignment Agreement], and [(viii)] the Registration
Statement and Prospectus. The Trust Agreement[, the Underwriting Agreement] and
[the Assignment Agreement] are referred to herein as the "Depositor Agreements".
We are admitted to practice law in the State of New York and
express no opinion herein as to the laws of any jurisdiction other than the laws
of such State, the federal laws of the United States of America and the General
Corporation Law of the State of Delaware.
In rendering the opinions expressed below, we have examined
the Depositor Agreements, [the Indenture,] [the Swap Agreement,] [the Related
Agreements,] [the Credit Enhancement Agreements,] the Registration Statement,
the Prospectus, the certificate of incorporation and by-laws of the Depositor, a
good standing certificate issued by the State of Delaware with respect to the
Depositor, certain resolutions adopted by the Board of Directors of the
Depositor and a specimen of the Certificates[ and of the Notes]. In addition, we
have examined originals (or copies certified or otherwise identified to our
satisfaction) of such other instruments, certificates, records and documents as
we have deemed necessary or appropriate for the purpose of rendering this
opinion.
A-2
18
Based upon the foregoing, and having regard to legal
considerations which we deem relevant, subject to the assumptions,
qualifications and limitations set forth herein, we are of the opinion that:
1. The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
full corporate power and authority to execute, deliver and perform its
obligations under the Depositor Agreements.
2. The Trust Agreement has been duly authorized, executed and
delivered by the Depositor and (a) creates a valid common law trust under the
laws of the State of New York and (b) constitutes the legal, valid and binding
obligation of the Depositor enforceable against it in accordance with its terms.
3. [The Assignment Agreement has been duly authorized,
executed and delivered by the Depositor and constitutes the legal, valid and
binding obligation of the Depositor enforceable against it in accordance with
its terms.]
4. The Underwriting Agreement has been [duly authorized,
executed and delivered by the Depositor][authorized by all necessary action in
respect of the Trust, executed and delivered by the Trustee on behalf of the
Trust].
5. [Each of the [Swap Agreement,] [Related Agreements] [and]
[Credit Enhancement Agreements has been authorized by all necessary action in
respect of the Trust, executed and delivered by the Trustee on behalf of the
Trust and, upon the authorization, execution and delivery by each other party
thereto, will constitute the legal, valid and binding agreement of the Trust,
enforceable against it in accordance with its terms.]
6. The Certificates have been duly authorized, executed and
delivered in accordance with the Trust Agreement, and assuming due
authentication thereof by the Trustee and upon payment therefor as contemplated
by the Prospectus, the Certificates (a) will be validly issued and outstanding,
(b) will evidence the entire undivided beneficial interest in the Trust and
entitle the holders thereof to the benefits of the Trust Agreement and (c) will
conform in all material respects to the description thereof in the Prospectus.
7. [The Indenture has been authorized by all necessary action
in respect of the Trust, executed and delivered by the Trustee on behalf of the
Trust and, upon the authorization, execution and delivery by each other party
thereto, will constitute the legal, valid and binding agreement of the Trust,
enforceable against it in accordance with its terms. The Notes have been duly
authorized, executed and delivered in accordance with the Indenture, and
assuming due authentication thereof by the Indenture Trustee, and upon payment
therefor as contemplated by the Prospectus, the Notes (a) will be validly issued
and outstanding and will entitle the holders thereof to the benefits of the
Indenture, (b) will constitute legal, valid and binding obligations of the Trust
enforceable
A-3
19
against it in accordance with their terms and (c) will conform in all material
respects to the description thereof in the Prospectus.]
8. [Each of the][The] Trust Agreement[ and the Indenture] has
been qualified as an indenture under the Trust Indenture Act of 1939, as
amended.
9. Neither the Depositor nor the Trust is and, after giving
effect to the offering and sale of the Designated Securities and the application
of the proceeds thereof as described in the Prospectus, neither will be required
to register as an "investment company" under the Investment Company Act of 1940,
as amended.
10. The Registration Statement has become effective under the
Securities Act, and, to our knowledge (a) no stop order suspending the
effectiveness of the Registration Statement has been issued and not withdrawn
and (b) no proceedings for that purpose have been instituted or threatened under
Section 8(d) of the Securities Act.
11. The Registration Statement, as of the date it became
effective, and the Prospectus, as of the date of the Prospectus Supplement,
other than financial or statistical information contained therein as to which we
express no opinion, complied as to form in all material respects with the
requirements of the Securities Act and the applicable rules and regulations
thereunder.
12. The execution and delivery by the Depositor of, and the
performance by the Depositor of its obligations under, each of the Depositor
Agreements, and the consummation of the transactions contemplated thereby do not
and will not:
A. contravene any provision of the Delaware General
Corporation Law or any federal or State of New York statute or
regulation, except that we express no opinion with respect to
compliance with the securities laws of the State of New York
or any other state;
B. contravene any provision of the certificate of
incorporation or by-laws of the Depositor;
C. contravene any agreement or other instrument
binding upon the Depositor listed on the attached certificate,
which list to our knowledge contains all agreements or other
instruments binding upon the Depositor; or
D. contravene any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Depositor that (a) is known to us and (b) is material to
the Depositor.
▇-▇
▇▇
▇▇. The execution and delivery by the Trustee on behalf of the
Trust, and the performance by the Trust of its obligations under, the Trust
Agreement, [the Indenture,] [, the Underwriting Agreement] [, the Assignment
Agreement] [, the Swap Agreement] [and] [each of the Related Agreements and
Credit Enhancement Agreements to which it is a party], and the consummation of
the transactions contemplated thereby do not and will not:
A. contravene any provision of any federal or State
of New York statute or regulation, except that we express no
opinion with respect to compliance with the securities laws of
the State of New York or any other state;
B. contravene any provision of the Trust Agreement;
C. contravene any agreement or other instrument
binding upon the Trust listed on the attached certificate,
which list to our knowledge contains all agreements or other
instruments binding upon the Trust; or
D. contravene any judgment, order or decree known to
us of any governmental body, agency or court having
jurisdiction over the Trust that is material to the Trust.
14. All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Trust and the Depositor under the
federal laws of the United States, and the laws of the State of New York and the
Delaware General Corporation Law for the issuance, sale and delivery of the
Designated Securities to the Underwriters have been obtained or made, except
that we express no opinion with respect to compliance with the securities laws
of the State of New York or any other state.
15. To our knowledge, there are no material contracts,
agreements or other documents or any legal or governmental proceedings related
to the Depositor, the Trust or the Designated Securities of a character required
to be described or referred to in either 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 as exhibits thereto.
16. The statements in the Prospectus Supplement describing the
terms and provisions of the Trust Agreement[,][ and] the Designated Securities[
and the Indenture] under the captions "Description of the Trust Agreement"[,
"Description of the Indenture"] and "Description of the [Notes and]
Certificates," insofar as those purport to summarize certain provisions of the
Trust Agreement[,][ and] the Designated Securities[ and the Indenture], provide
a fair summary of such terms and provisions.
In rendering the foregoing opinions, we have assumed the
following (which assumptions we have not independently verified): (a) the
authenticity of original
A-5
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documents and genuineness of all signatures; (b) the conformity to the originals
of all documents submitted to us as copies; (c) the truth, accuracy and
completeness of the information, representations and warranties made in
conference or contained in the records, documents, instruments and certificates
we have reviewed; (d) the power and authority of each party to each agreement
and instrument referred to herein other than the Depositor and the Trust, as
applicable, to enter into and perform all of their obligations thereunder; (e)
the due authorization, execution and delivery of the Depositor Agreements [and
the Indenture] on behalf of the respective parties thereto other than the
Depositor and the Trust and the legal, valid, and binding effect thereof and
enforceability against the respective parties thereto other than the Depositor
and the Trust, (f) the Designated Securities conform to the specimen[s] thereof
examined by us, the Trustee's[ and the Indenture Trustee's] certificates of
authentication of the Designated Securities have been manually signed by one of
the Trustee's[ and the Indenture Trustee's] responsible officers or authorized
signatories, and (g) the absence of any binding agreement or understanding that
supplements or otherwise modifies the intentions and agreements of the parties
to any of the agreements or instruments referred herein, as expressed in such
agreement or instrument. In addition, in rendering our opinion in paragraph 9 in
respect of the Depositor, we have relied on an officer's certificate of the
Depositor.
Whenever a statement herein is qualified by the phrase "to our
knowledge," "known to us", "come to our attention" or any similar phrase, it is
intended to indicate that, during the course of our representation of the
Depositor, no information that would give us current actual knowledge of the
inaccuracy of such statement has come to the attention of those attorneys who
have been actively involved in representing the Depositor in connection with any
matters relating to the transactions described in this opinion letter. However,
we have not undertaken any independent investigation to determine the accuracy
of any such statement.
Our opinion that any agreement or instrument is legal, valid,
binding or enforceable in accordance with its terms is qualified as to:
(a) limitations imposed by bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium or other laws
relating to or affecting the enforcement of creditors' rights generally;
(b) general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law; and
(c) rights to indemnification which may be limited by
applicable law or equitable principles or otherwise unenforceable as against
public policy.
In addition, we express no opinion as to whether a federal
court of the United States of America located outside the State of New York or a
state court outside the State of New York would give effect to the choice of New
York law provided for in any of the agreements or instruments referred to
herein.
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We have participated in conferences with your representatives
and the Trustee concerning the Registration Statement and the Prospectus and
have considered the matters and the statements contained therein, although we
have not independently verified the accuracy, completeness or fairness of such
statements (except as described in paragraph 16 above) and take no
responsibility for any such statements. Based upon and subject to the foregoing,
nothing has come to our attention to cause us to believe that the Prospectus, as
of the date of the Prospectus Supplement or as of the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that we have not been requested to and do
not make any comment in this paragraph with respect to the description of the
Trust Assets or the financial statements, schedules and any other financial and
statistical information contained in the Prospectus). In connection with this
paragraph, we have relied, to the extent that we may properly do so in the
discharge of our professional responsibilities as experienced securities law
practitioners, upon the judgment and statements of officers and representatives
of the Depositor and UBS Americas with respect to facts necessary to the
determination of materiality.
This opinion letter is solely for your respective benefits in
connection with the transaction referred to in the first paragraph hereof and
may not be relied upon or used by, circulated, quoted or referred to, nor may
copies hereof be delivered to, any other person, without our prior written
consent. Notwithstanding the foregoing, each person listed in Schedule I
attached hereto is entitled to rely on this opinion letter as though the same
were addressed to it, subject to the condition that by acceptance of this letter
each person listed in Schedule I recognizes and acknowledges that: (i) no
attorney-client relationship exists or has existed between our firm and such
person in connection with the issuance of the Designated Securities or by virtue
of this opinion letter; (ii) in order to permit reliance by such person on this
letter, our firm conducted no activities in addition to those undertaken or
conducted for the purpose of rendering this opinion letter to the addressee
hereof, and (iii) this opinion letter may not be appropriate or sufficient for
such person's purposes. We disclaim any obligation to update this opinion letter
for events occurring or coming to our attention after the date hereof.
Very truly yours,
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23
SCHEDULE I
The Bank of New York, as Trustee
▇▇▇▇▇'▇ Investors Service, Inc.
Standard & Poor's Ratings Group
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24
CABCO SERIES 200 ___ - ___ TRUST
CABCO [CERTIFICATES] [NOTES AND CERTIFICATES], SERIES 200 ___ - ___
CORPORATE ASSET BACKED CORPORATION
UNDERWRITING AGREEMENT
___ , 200 ___
Corporate Asset Backed Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Ladies and Gentlemen:
We (the "Manager[s]") [are] [is] acting on behalf of the underwriter or
underwriters (including us) named below (such underwriter or underwriters being
herein called the "Underwriters"), and we understand that Corporate Asset Backed
Corporation, a Delaware corporation (the "Depositor"), proposes to cause [name
of trust] (the "Trust") to issue and sell certain securities (the "Designated
Securities"). The Designated Securities will consist of [currency and principal
balance] aggregate principal balance of [[name of certificates] (the
"Certificates")] [and [currency and principal balance] aggregate principal
balance of [name of notes] (the "Notes")]. The property of the Trust will
consist principally of $ ___ [aggregate principal balance] of [specify
securities] (the "Underlying Securities") [and certain funds and other
collateral [and any Swap Agreement, Related Agreement or Credit Enhancement
Agreement as defined below] (together with the Underlying Securities, the "Trust
Assets")]. The Underlying Securities are being sold to the Trust [by the
Depositor]. The Certificates will be issued pursuant to the provisions of a
trust agreement, to be dated as of ___, 200 ___ (the "Trust Agreement")
between the Depositor and ___ , as Trustee (the "Trustee"). [The Notes will be
issued pursuant to the provisions of an indenture, to be dated as of ___,
200 ___(the "Indenture") between the Trust, as issuer, and ___, as trustee
(the "Indenture Trustee").]
Subject to the terms and conditions set forth or incorporated by
reference into this Agreement, the Depositor hereby agrees to sell, and if
applicable, cause the Trust to sell, to the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from [the Trust] [the
Depositor] the respective principal balance of Designated Securities set forth
below opposite their names at a purchase price of ___% of the initial
principal amount of the Designated Securities, plus accrued interest, if any,
from ___, 200 ___to the date of payment and delivery:
-1-
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Aggregate initial
principal balance of Designated
Name Securities
---- --------------------------------
[UBS Warburg LLC]
[UBS PaineWebber Inc.]
[Insert syndicate names]
Total
The Underwriters will pay for the Designated Securities upon delivery
thereof at the office of [Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇] at ___ a.m. (New York City
time) on ___, 200 ___, or at such other time, not later than 5:00 p.m. (New York
City time) on ___, 200 ___, as shall be designated by the Manager[s]. The time
and date of such payment and delivery are hereinafter referred to as the
"Closing Date".
The Designated Securities shall have the terms set forth in the
Prospectus dated ___, 200 ___, and the Prospectus Supplement dated ___, 200 ___
including the terms set forth in Schedule 1:
[Insert any special provisions, including any "Swap Agreements",
"Related Agreements" or "Credit Enhancement Agreements."]
All provisions contained in the document entitled Corporate Asset
Backed Corporation Underwriting Agreement Standard Provisions dated ___,
2001, a copy of which is attached hereto, are herein incorporated by reference
in their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein, except that if
any term defined in such document is otherwise defined herein, the definition
set forth herein shall control.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to [UBS Warburg LLC] [UBS PaineWebber Inc.]
shall be directed to: [address], Attention: ___; notices to [the Trust] shall be
directed to the Trustee at [Name of Trustee], [address], Attention: ___;
[notices to the [Indenture Trustee] shall be directed to [Name of Indenture
Trustee], [address], Attention: ___;] and notices to the Depositor shall be
directed to Corporate Asset Backed Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇; or, as to any party, such
other address as may hereafter be furnished by such party to the other in
writing.
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Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[UBS WARBURG LLC]
[UBS PAINEWEBBER INC.]
[Name of Other Lead Managers]
Acting severally on behalf of themselves and
the several Underwriters named herein
By: [UBS WARBURG LLC]
[UBS PAINEWEBBER INC.]
By:
Name:
Title:
Accepted:
CORPORATE ASSET BACKED CORPORATION
By:
Name:
Title:
[CABCO Series 200 ___ - ___ Trust
By: The Bank of New York,
not in its individual capacity
but solely as Trustee under
the Trust Agreement.
By:
Authorized Signatory]
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SCHEDULE 1
TERMS OF DESIGNATED SECURITIES
[Insert Exhibit A from Trust Agreement and other details]