Exhibit 1.2
XXXXXX XXXXXXX ABS CAPITAL II INC.
ASSET BACKED SECURITIES
(Issuable in Series)
FORM OF UNDERWRITING AGREEMENT
New York, New York
____________, 199_
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
[Xxxxxx Xxxxxxx ABS Capital II Inc., a Delaware corporation (the
"Company"), proposes to sell to you ("the Underwriter") Asset Backed Notes
(the "Notes") (and
Asset Backed Certificates) (the "Certificates" and, together with the Notes,
the] "Securities") in the classes, and in the respective original
principal amounts [as follows: [ ]. The Notes will be issued
pursuant to an Indenture, dated as of _____________, 199_ between the Trust
and _____________, as Indenture Trustee. (The Certificates will be issued
pursuant to a Trust Agreement dated as of _______________, 199_ between the
Company, as Depositor and __________________, as Owner Trustee.]] [Xxxxxx
xxxxxx ABS Capital II Inc., a Delaware corporation, proposes to sell to you
("the Underwriter") Asset
Backed Certificates in the classes, and in the respective original
principal amounts [as follows: [ ] (the "Securities"). The
Securities will be issued pursuant to a pooling and servicing agreement
dated as of _____________, 199_ (the "Pooling and Servicing Agreement") among
the Company, as Depositor, _______________, as Servicer, and
__________________, as Trustee (the "Trustee").) The Securities will
represent [obligations of] undivided beneficial ownership interests] in a
trust (the "Trust") the assets of which shall consist of (DESCRIBE TRUST
ASSETS).
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating
to the Securities and has filed with, or mailed for filing to, the Commission
a prospectus supplement specifically relating to the Securities pursuant to
Rule 424 under the Securities Act of 1933 (the "Securities Act"). The term
Registration Statement means such registration statement as amended to the
date of the Underwriting Agreement. The term Base Prospectus means the
prospectus included in the Registration Statement. The term Prospectus means
the Base Prospectus together with the prospectus supplement specifically
relating to the Securities, as filed with, or mailed for filing to, the
Commission pursuant to Rule 424. The term preliminary prospectus means a
preliminary prospectus supplement specifically relating to the Securities
together with the Base Prospectus. Terms not otherwise defined in this
Agreement are used herein as defined in the Pooling and Servicing Agreement,
the Sale and Servicing Agreement, dated as of __________, 199__ among the
Trust, the Company, _____________, as servicer and ________, as indenture
trustee, the Trust Agreement or the Indenture (each a "Designated
Agreement").
I.
The Company represents and warrants to and agrees with the
Underwriter that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each part of the Registration Statement, when such part
became effective, did not contain, and each such part, as amended or
supplemented, if applicable, will not contain any 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, (ii)
the Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iii) the Prospectus does not contain and, as
amended or supplemented, if applicable, will 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, except that the representations
and warranties set forth in this paragraph I(b)(i) do not apply to
statements or omissions in the Registration Statement or the Prospectus
based upon and in conformity with information relating to the
Underwriter furnished to the Company in writing by the Underwriter
expressly for use or incorporation therein.
(c) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and to enter
into and perform its obligations under this Agreement and the Designated
Agreement(s).
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The Designated Agreement(s) has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and to general
principles of equity regardless of whether enforcement is sought in a
proceeding in equity or at law.
(f) The direction by the Company to the Trustee to execute,
authenticate and deliver the Securities has been duly authorized by the
Company, and the Securities, when executed and authenticated in the
manner contemplated in the Designated Agreement(s), and delivered to and
paid for by the Underwriter in accordance with the terms of this
Agreement, will be validly issued and outstanding and entitled to the
benefits of the Designated Agreement(s).
(g) Neither the execution and delivery by the Company of, nor the
performance by the Company of its obligations under, this Agreement or
the Designated Agreement(s), will contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Company or any
agreement or other instrument binding upon the Company that is material
to the Company or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement or
Designated Agreement(s), 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 Securities.
(h) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(i) There are no legal or governmental proceedings pending or
threatened to which the Company is a party or to which any of the
properties of the Company are subject that are required to be described
in the Registration Statement or the Prospectus and that are not so
described, nor are there any statutes, regulations, contracts or other
documents required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required.
(j) Each preliminary prospectus filed as part of the registration
statement as originally filed or as a part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied as to
form, when so filed, in all material respects with the Securities Act
and the rules and regulations of the Commission thereunder.
(k) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
II.
The Company hereby agrees to sell the Securities to the Underwriter, and
the Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to
purchase the Securities from the Company, for a purchase price of $________,
which price includes accrued interest, if any, from __________, 199_ to the
date of payment and delivery.
III.
The Underwriter proposes to make a public offering of the
Securities as soon as this Agreement is entered into. The terms of the
public offering of the Securities are set forth in the Prospectus.
IV.
Payment for the Securities shall be made by certified or official
bank check or checks payable to the order of the Company in immediately
available funds at the office of the Underwriter, (address), at 10:00 A.M.,
local time, on ______________, 19___ (Insert date 5 business days after date
of this Agreement), or at such other time or place on the same or such other
date, not later than ___________, 199___ (Insert date 10 business days after
date of this Agreement). Payment for the Securities shall be made upon
delivery to the Underwriter of the Securities registered in such names and in
such denominations as the Underwriter shall request in writing not less than
two full business days prior to the date of delivery. The time and date of
such payment and delivery with respect to the Securities are herein referred
to as the "Closing Date."
V.
The obligations of the Underwriter hereunder are subject to the
following conditions:
A. subsequent to the execution and delivery of this
Agreement and prior to the Closing Date
(1) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading, or
any review for a possible change, that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(2) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations, of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, that in the judgment of the Underwriter, is material and
adverse and that makes it, in the judgment of the Underwriter,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus; and
(3) the Underwriter shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (i) above and to the
effect that the representations and warranties of the Company contained
in this Agreement are true and correct as of the Closing Date and that
the Company has complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied on or before the
Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
B. The Underwriter shall have received on the Closing Date
an opinion of counsel for the Company, dated the Closing Date, to the
effect set forth in Exhibit A.
C. The Underwriter shall have received on the Closing Date
an opinion of counsel to the Underwriter in form and substance
acceptable to it.
D. The Underwriter shall have received on the Closing Date a
letter of (Name of accounting firm), dated the date of this Agreement in
form and substance satisfactory to the Underwriter, regarding certain
specified procedures performed thereby with respect to information set
forth in the Prospectus.
VI.
In further consideration of the agreements of the Underwriter
contained in this Agreement, the Company covenants as follows:
A. To furnish the Underwriter, without charge, a signed copy
of the Registration Statement and any amendments thereto, including
exhibits, and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus and any supplements and amendments thereto
as the Underwriter may reasonably request.
B. Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Securities, to furnish
the Underwriter a copy of each such proposed amendment or supplement and
not to file any such proposed amendment or supplement to which the
Underwriter reasonably objects.
C. If, during such period after the first date of the public
offering of the Securities, as in the opinion of counsel for the
Underwriter the Prospectus is required by law to be delivered in
connection with sales by the Underwriter, 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 when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at
its own expense, to the Underwriter, 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 when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law.
D. To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Underwriter shall reasonably request and to pay all expenses (including
fees and disbursements of counsel) in connection with such qualification
and in connection with the determination of the eligibility of the
Securities for investment under the laws of such jurisdictions as the
Underwriter may designate.
VII.
The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls such Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act of 1934 (the "Exchange Act"), from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any preliminary prospectus or the Prospectus (if used within the
period set forth in paragraph (c) of Article VI and as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon and in conformity with
information furnished in writing to the Company by the Underwriter expressly
for use or incorporation therein.
The Underwriter agrees to indemnify and hold harmless the Company
and its directors and officers who sign the Registration Statement and any
person controlling the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Underwriter, but only with
reference to information relating to the Underwriter furnished in writing by
the Underwriter expressly for use or incorporation in the Registration
Statement, any preliminary prospectus or the Prospectus.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party, in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Underwriter in the case of parties indemnified
pursuant to the first paragraph of this Article VII and by the Company in the
case of parties indemnified pursuant to the second paragraph of this Article
VII. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the 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 as contemplated by the third sentence of this paragraph,
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. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
To the extent the indemnification provided for in this Article VII
is unavailable to an indemnified party under the first or second paragraph of
this Article VII or is insufficient in respect of any losses, claims, damages
or liabilities referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand, and the
Underwriter on the other, from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand, and of the Underwriter on the other, in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand, and the Underwriter on the other, in connection with the offering of
the Securities shall be deemed to be in the same proportions that the total
net proceeds from the offering of the Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriter in respect thereof respectively, bear to the
aggregate public offering price of the Securities. The relative fault of the
Company on the one hand, and of the Underwriter on the other, 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 relates to information supplied by the Company or by
the Underwriter and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation or by any other method of allocation which does not take
account of the considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations
set forth above, 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 Article VII, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions received by
the Underwriter in connection with the Securities underwritten and
distributed to the public by the Underwriter exceeds the amount of any
damages which the 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 indemnity and contribution agreements contained in this Article
VII and the representations and warranties of the Company in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Underwriter or any person controlling the Underwriter or by or on behalf
of the Company, its directors or officers or any person controlling the
Company and (iii) acceptance of any payment for any of the Securities.
VIII.
This Agreement shall be subject to termination in the
Underwriter's absolute discretion, by notice given to the Company, if (a)
after the execution and delivery of this Agreement and prior to the Closing
Date (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 Company 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
Underwriter, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event singly or together with
any other such event, makes it, in the judgment of the Underwriter,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
IX.
If this Agreement shall be terminated by the Underwriter because of
any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriter for all out-of-pocket expenses
(including the fees and disbursements of its counsel) reasonably incurred by
the Underwriter in connection with the Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Very truly yours,
XXXXXX XXXXXXX ABS CAPITAL II INC.
By:_____________________________
Name:
Title:
Accepted and agreed to by:
(UNDERWRITER)
By: _____________________________
Name:
Title:
EXHIBIT A
OPINION OF XXXXX & WOOD LLP, COUNSEL FOR THE COMPANY
The opinion of Xxxxx & Xxxx LLP, counsel for the Company, to be
delivered pursuant to Article V, paragraph (b) of the document entitled
Xxxxxx Xxxxxxx ABS Capital II Inc. Underwriting Agreement shall be to the
effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has the corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus;
(ii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(iii) the Designated Agreement(s) has been duly
authorized, executed and delivered by the Company and constitutes a
legal, valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, subject, as to enforceability,
to bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting creditors' rights generally and to general principles of
equity, regardless of whether enforcement is sought in a proceeding in
equity or at law;
(iv) the direction by the Company to the Trustee to execute,
authenticate and deliver the Securities has been duly authorized by the
Company, and the Securities, when executed and authenticated in the
manner contemplated in the Designated Agreement(s), will be validly
issued and outstanding and entitled to the benefits of the Designated
Agreement(s);
(v) the Registration Statement is effective under the
Securities Act, and, to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn, and no
proceedings for that purpose have been initiated or threatened by the
Commission and not terminated;
(vi) the Securities and the Designated Agreement(s) conform in
all material respects to the descriptions thereof contained in the
Prospectus;
(vii) the Trust is not required to be registered under the
Investment Company Act of 1940, as amended;
(viii) the Designated Agreement(s) is not required to be
qualified under the Trust Indenture Act of 1939, as amended;
(ix) the statements in the Prospectus under the caption
"Federal Income Tax Consequences", to the extent that they constitute
matters of law or legal conclusions with respect thereto that are
material to the Securities, have been
prepared or reviewed by such counsel and correctly present the opinion
of such counsel;
(x) the execution, delivery and performance by the Company of
the Underwriting Agreement and the Designated Agreement(s) will not
conflict with or constitute a breach of or default under the certificate
of incorporation or bylaws of the Company or any agreement, indenture or
other instrument identified by the Company to such counsel to which the
Company is a party or by which it or any of its properties may be bound,
or any law, administrative regulation or court decree applicable to the
Company and no consent, approval or authorization or order of any court
or governmental agency or body is required for the performance of the
Underwriting Agreement, except such as are specified and have been
obtained;
Nothing has come to the attention of such counsel that would lead them
to believe that (except for the financial statements and other numerical,
financial and statistical data or information contained therein, as to which
such counsel need not express any opinion) 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, on the
date of the Underwriting Agreement 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 light
of the circumstances under which they were made, not misleading; provided
that such counsel may state that (i) their opinion and belief are based upon
their participation in the preparation of the Registration Statement and the
Prospectus and any amendments and supplements thereto and review and
discussion of the contents thereof, but is without independent check or
verification except as specified, (ii) they are not passing on the adequacy
or accuracy of the derivation or compilation of the numerical, statistical or
financial data or information included in the Registration Statement and
Prospectus and (iii) they are not passing on the adequacy or accuracy of
information supplied by persons other than the Company for use in the
Registration Statement or the Prospectus.
Terms capitalized herein and not otherwise defined shall have the
meanings assigned to them in the Underwriting Agreement.
