Exhibit 1.1
[_______________________________]
$[_____________]
(Approximate}
[ __________________ ] Owner Trust
Series 200_-_ Notes
FORM OF UNDERWRITING AGREEMENT
______________, 200_
Barclays Capital Inc.
c/▇ ▇▇▇▇▇▇▇'▇ Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
[________________________________], a [_______] [___________] (the
"Company") proposes to sell to Barclay's Capital Inc. ("Barclays") [and
__________________ ("_____" and together with Barclays, the "Underwriters")],
pursuant to this agreement ("Agreement"), [_____] Asset Backed Notes, Series
200_-_ (the "Offered Notes") issued by [_______] Owner Trust 200_-_, a Delaware
business trust (the "Owner Trust" or the "Issuer"). The Owner Trust will be
formed pursuant to a trust agreement, to be dated as of [______________], 200_
(the "Owner Trust Agreement"), among the Company, as depositor, [_________], as
owner trustee (the "Owner Trustee"), ____________________, as paying agent
("____________," and in such capacity, the "Paying Agent") and _______________
("________" or the "Transferor"). The Notes will be secured by the assets of the
Owner Trust, which is primarily comprised of a pool (the "Pool") of
[______________] (the "[_____________________]") as described in the Prospectus
(as hereinafter defined). The [______________] will be sold by the Company to
the Owner Trust pursuant to a sale and servicing agreement, to be dated as of
___________, 200_ (the "Sale and Servicing Agreement"), among the Owner Trust,
as issuer, the Company, as depositor, [______________], as indenture trustee (in
such capacity, the "Indenture Trustee"), and [______________], as master
servicer and transferor. The [______________] will be sold by [______________]
to the Company pursuant to a mortgage loan purchase agreement, to be dated as of
[______________], 200_ (the "Purchase Agreement"), between the Company, as
depositor, and [______________], as transferor. The Notes will be issued
pursuant to an indenture, to be dated as of [______________], 200_ (the
"Indenture"), between the Owner Trust and the Indenture Trustee. Reference is
hereby made to (i) an indemnification and contribution agreement, dated
[______________], 200_ (the "Indemnification and Contribution Agreement"), among
the Company, the Underwriters and [______________], (ii) an administration
agreement, to be dated as of [______________], 200_ (the "Administration
Agreement"), among the Owner Trust, [______________] (in such capacity, the
"Administrator") and ___________ and (iii) a custodial agreement, to be dated as
of [______________], 200_ (the "Custodial Agreement"), among [______________],
the Company and [______________] (in such capacity, the "Custodian").
The [_________________] Purchase Agreement, the Sale and Servicing Agreement,
the Indenture, the Owner Trust Agreement, the Indemnification and Contribution
Agreement, the Custodial Agreement, the Administration Agreement and this
Agreement are collectively referred to herein as the "Transaction Documents."
The Notes are described more fully in the Prospectus (as hereinafter defined).
Only the Offered Notes are being sold pursuant to this Agreement.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-______) for the
registration of the Notes under the Securities Act of 1933 (the "1933 Act"),
which registration statement has become effective and copies of which, as
amended to the date hereof, have been delivered to each of the Underwriters. The
Company proposes to file with the Commission pursuant to Rule 424(b)(5) under
the rules and regulations of the Commission under the Act (the "1933 Act
Regulations") a prospectus supplement, dated [______________], 200_ (the
"Prospectus Supplement"), to the prospectus, dated [______________], 200_,
included in such registration statement, relating to the Offered Notes and the
method of distribution thereof. Such registration statement on Form S-3,
including exhibits thereto, as amended as of the date hereof, is hereinafter
called the "Registration Statement"; and such prospectus, supplemented by the
Prospectus Supplement or further supplement relating to the Offered Notes, is
hereinafter called the "Prospectus".
Section 1. Representations and Warranties.
(a) The Company represents and warrants to the Underwriter[s] as
follows:
(i) The Registration Statement, as amended as of the effective date
thereof (the "Effective Date") and the Prospectus, as of the date thereof,
complied in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations. The Registration Statement, as of the
Effective Date, did not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. The Prospectus, as of the
date thereof, did not, and as of the Closing Date will not, contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus (A) arising from or included in [______________] Information
(as defined in the Indemnification and Contribution Agreement) or
(B) made in reliance upon and in conformity with information
furnished to the Company in writing by [each of] the Underwriter[s] expressly
for use in the Registration Statement or Prospectus. The Company and the
Underwriter[s] hereby acknowledge that only the statements set forth in the
[____] paragraph of the cover of the Prospectus Supplement (other than the
[____] sentence), under the caption "Underwriting" in the Prospectus Supplement
(other than the [____] paragraph and the [____] sentence of the [____] paragraph
under such caption) and the Underwriter Information (as defined in Section 8(k))
contained in any Furnished Term Sheets (as defined in Section 8(d)), constitute
statements made
-2-
in reliance upon and in conformity with information furnished to the Company in
writing by [each of] the Underwriter[s] expressly for use in the Registration
Statement, or Prospectus (such statements being collectively referred to as
"Underwriter Statements").
(ii) Since the respective dates as of which information is given in
the Registration Statement and Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business, and (B) there have been no transactions entered into by the
Company, other than those in the ordinary course of business, which are
material with respect to the Company, in either case which would
materially and adversely affect the Company's ability to perform its
obligations hereunder or under the Transaction Documents to which it is a
party.
(iii) The Company has been duly incorporated and is validly existing
as [_________] in good standing under the laws of the State of [_________]
with corporate power and authority to own, lease and operate its
properties and to conduct its business, as now conducted by it, and to
enter into and perform its obligations under the Transaction Documents to
which it is a party; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which the failure to be so qualified would have a material
and adverse effect on the Company's ability to perform its obligations
hereunder or under any Transaction Document to which the Company is a
party.
(iv) The Company is not in violation of its charter or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company is a party, or to which any of the property or assets of the
Company may be subject, or by which it or any of them may be bound; and
the issuance and sale of the Notes to [each of] the Underwriter[s], the
execution, delivery and performance of the Transaction Documents to which
it is a party and the consummation of the transactions contemplated
therein and compliance by the Company with its obligations thereunder have
been duly authorized by all necessary corporate action and will not
conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company is subject, nor
will such action result in any violation of the provisions of the charter
or by-laws of the Company or any applicable law, administrative regulation
or administrative or court decree.
(v) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company,
which is required to be disclosed in the Registration Statement (other
than as disclosed therein), or which might materially and adversely affect
Company's ability to perform its obligations hereunder or
-3-
under the Transaction Documents to which it is a party; all pending legal
or governmental proceedings to which the Company is a party or of which
its property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental
to the business, are, considered in the aggregate, not material.
(vi) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering, issuance or sale of the Offered Notes hereunder, except such as
have been, or as of the Closing Date will have been, obtained or such as
may otherwise be required under applicable state securities laws in
connection with the purchase and offer and sale of the Offered Notes by
the Underwriter[s] and any recordation of the respective assignments of
the [Loans][Receivables] to the Indenture Trustee pursuant to the
Indenture that have not yet been completed.
(vii) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to perform its obligations
hereunder or under any Transaction Document to which the Company is a
party, and the Company 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 ability of the Company to perform its obligations hereunder or
under the Transaction Documents.
(viii) Each of the Transaction Documents to which it is a party has
been duly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding agreement enforceable against the
Company in accordance with its terms, except as enforceability may be
limited by (A) bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws affecting the enforcement of the rights
of creditors generally, (B) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law, and (C) public
policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of the
provisions of such Transaction Documents that purport to provide
indemnification from securities law liabilities.
(ix) At the time of the execution and delivery of the Sale and
Servicing Agreement, the Company (i) will have good and marketable title
to the [_________________] being transferred by it to the Owner Trust
pursuant thereto, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively
"Liens"), to the extent good and marketable title to the
[_________________] is transferred to the Company, free and clear of all
Liens, by the Transferor, and (ii) will have the power and authority to
transfer such [_________________] to the Owner Trust, and upon execution
and delivery of the Sale and Servicing Agreement by the Owner Trust and
the Transferor, the Owner Trust will have acquired ownership of all of the
Company's right, title and interest in and to the related
[_________________].
-4-
(x) At the Closing Date, the Notes will be rated not lower than
"____" by _________ ("______") and "____" by ________________ ("______").
(xi) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of the Transaction Documents to
which it is a party and the Offered Notes have been paid or will be paid
at or prior to the Closing Date.
(b) Any certificate signed by any officer of the Company and
delivered to the Underwriter[s] or [its/their] counsel shall be deemed a
representation and warranty by the Company to the Underwriter[s] as to the
matters covered thereby.
Section 2. Purchase and Sale. Subject to the terms and conditions
herein set forth and in reliance upon the representations and warranties herein
contained, the Company agrees to sell to [each of] the Underwriter[s], and [each
of] the Underwriter[s] agrees, severally and not jointly, to purchase from the
Company, at a purchase price set forth on Schedule A hereto, the principal
amount of the Offered Notes set forth on Schedule A hereto.
Section 3. Delivery and Payment. Payment of the purchase price for,
and delivery of, the Offered Notes to be purchased by the Underwriter[s] shall
be made at the office of [Barclays Capital Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇], or at such other place as shall be agreed upon by the
Underwriter[s] and the Company, at 10:00 A.M. New York City time, on __________,
200_, which date and time may be postponed by agreement between you and the
Company (such time and date of payment and delivery being herein called the
"Closing Date"). Payment shall be made to the Company in immediately available
federal funds wired to such bank as may be designated by the Company, against
delivery of the Offered Notes or with respect to payments to be made by
Barclays, at the Company's option, by appropriate notation of an inter-company
transfer between affiliates of [__________]. The Offered Notes shall be in such
denominations and registered in such names as you may request in writing at
least two business days before Closing Date. The Offered Notes will be made
available for examination and packaging by you not later than 10:00 A.M. on the
last business day prior to Closing Date.
Section 4. Covenants of the Company. The Company covenants with each
of the Underwriters as follows:
(a) The Company will give the Underwriter[s] notice of its intention
to file or prepare any amendment to the Registration Statement or any amendment
or supplement to the Prospectus (including any revised prospectus which the
Company proposes for use by the Underwriter[s] in connection with the offering
of the Offered Notes which differs from the prospectus on file at the Commission
at the time the Registration Statement becomes effective, whether or not such
revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933
Act Regulations), will furnish the Underwriters with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which you shall reasonably object.
-5-
(b) The Company will cause the Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424(b)(5) under the 1933 Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule.
(c) The Company will deliver to the Underwriter[s] as many signed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein) as the Underwriters may reasonably request and will also deliver to the
Underwriter[s] a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits).
(d) The Company will furnish to [each of] the Underwriter[s], from
time to time during the period when the Prospectus is required to be delivered
under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such
number of copies of the Prospectus (as amended or supplemented) as [each of] the
Underwriter[s] may reasonably request for the purposes contemplated by the 1933
Act or the 1934 Act or the respective applicable rules and regulations of the
Commission thereunder.
(e) If during the period after the first date of the public offering
of the Offered Notes in which a prospectus relating to the Offered Notes is
required to be delivered under the 1933 Act, any event shall occur as a result
of which it is necessary, in the opinion of counsel for you, to amend or
supplement the Prospectus in order to make the Prospectus not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser,
the Company will forthwith amend or supplement the Prospectus (in form and
substance satisfactory to counsel for you) so that, as so amended or
supplemented, the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time it is delivered
to a purchaser, not misleading, and the Company will furnish to the
Underwriter[s] a reasonable number of copies of such amendment or supplement.
(f) The Company will endeavor to arrange for the qualification of
the Offered Notes for sale under the applicable securities laws of such states
and other jurisdictions of the United States as the Underwriters may designate;
provided, however, that the Company 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 Offered Notes have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement.
(g) If the transactions contemplated by this Agreement are
consummated, the Company will pay or cause to be paid all expenses incident to
the performance of the obligations of the Company under this Agreement, and will
reimburse the Underwriter[s] for any reasonable expenses (including reasonable
fees and disbursements of counsel) reasonably incurred by [him/them] in
connection with qualification of the Offered Notes for sale and determination of
their eligibility for investment under the laws of such jurisdictions as the
Underwriter[s] ha[ve/s] reasonably requested and the printing of memoranda
relating thereto, for any fees charged by investment rating agencies for the
rating of the Offered Notes, and for expenses incurred in distributing the
Prospectus (including any amendments and supplements thereto) to the
-6-
Underwriter[s]. Except as herein provided, the Underwriter[s] shall be
responsible for paying all costs and expenses incurred by each including the
fees and disbursements of counsel, in connection with the purchase and sale of
the Offered Notes.
(h) If, during the period after the Closing Date in which a
prospectus relating to the Offered Notes is required to be delivered under the
1933 Act, the Company receives notice that a stop order suspending the
effectiveness of the Registration Statement or preventing the offer and sale of
the Offered Notes is in effect, the Company will immediately advise the
Underwriters of the issuance of such stop order. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
Section 5. Conditions of Underwriter[s]' Obligations. The
Underwriter[s]' obligation to purchase the Offered Notes shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the Company's knowledge, threatened by the Commission.
(b) At the Closing Date the Underwriter[s] shall have received:
(i) The favorable opinion, dated as of the Closing Date, of
[_________] General Counsel for the Company, in form and substance
satisfactory to the Underwriter[s].
(ii) The favorable opinion, dated as of the Closing Date, of
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, in form and
substance satisfactory to the Underwriter[s].
(c) On the Closing Date, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Registration Statement, the Prospectus [and the Private Placement Memorandum],
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company, whether or not
arising in the ordinary course of business, and the Underwriter[s] shall have
received a certificate of the President or a Vice President of the Company,
dated as of the Closing Date, to the effect that (i) the representations and
warranties in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Date, (ii) the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Date, and (iii) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened by the
Commission.
(d) On the Closing Date counsel for the Underwriter[s] shall have
been furnished with such other documents and opinions as counsel may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Offered Notes 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
-7-
proceedings taken by the Company in connection with the issuance and sale of the
Offered Notes as herein contemplated shall be satisfactory in form and substance
to the Underwriter[s] and counsel for the Underwriter[s].
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriter[s] by notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party.
Section 6. Indemnification. The Company and each of the Underwriters
agree that:
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information deemed to
be part of the Registration Statement pursuant to Rule 430A(b) of the 1933
Act Regulations, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, the fees and disbursements of counsel chosen by you),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission (a) arising from
or included in the [_________________] Information, (b) made in the Underwriter
Statements or (c) arising out of or based upon the failure of any Underwriter to
comply with any provision of Section 8.
-8-
(b) Each Underwriter agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to (i) untrue statements or
omissions, or alleged untrue statements or omissions, made in the Underwriter
Statements or (ii) the failure of such Underwriter or any member of its selling
group to comply with any provision of Section 8. Only the Underwriter who failed
to comply with Section 8 shall have the foregoing obligations for such failure,
provided however, that each such Underwriter shall have the foregoing
obligations for any such failure by any member of its selling group.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have to any indemnified party otherwise then on
account of this indemnity agreement. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that, by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, the
indemnifying party elects to assume the defense thereof, it may participate
(jointly with any other indemnifying party similarly notified) with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party under this paragraph for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have employed separate
counsel (plus any local counsel) in connection with the assertion of legal
defenses in accordance with the proviso to the immediately preceding sentence,
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party, or (iv) a conflict or potential conflict exists (based
on advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party).
Unless it shall assume the defense of any proceeding, 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 shall indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. If any indemnifying party assumes the defense of any
proceeding, it shall not settle, compromise or consent to the entry of any
judgment with respect thereto if indemnification or contribution could be sought
-9-
under this Section 6 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes any unconditional release of each indemnified party from all liability
arising out of such proceeding 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) Each Underwriter will indemnify and hold harmless each other
Underwriter and each person, if any, who controls each such Underwriter within
the meaning of either the 1933 Act or the 1934 Act (a "Non-Indemnifying
Underwriter") from and against any and all losses, claims, damages or
liabilities, joint or several, to which such Non-Indemnifying Underwriter
becomes subject under the 1933 Act, the 1934 Act or other federal or state
statutory law or regulation, common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement of material fact contained in any
computational or other written materials developed by, mailed or otherwise
transmitted by such indemnifying Underwriter or any member of its selling group,
in connection with the Offered Notes or in any revision or amendment thereof or
supplement thereto or (ii) the failure of such indemnifying Underwriter, or any
member of its selling group, to comply with any provision of Section 8, and
agrees to reimburse each such Non-Indemnifying Underwriter, as incurred for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 6 hereof
is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and [each/the] Underwriter
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company and [each/the] Underwriter, as incurred, in such proportion as is
appropriate to reflect not only the relative benefits received by the Company on
the one hand and [each/the] Underwriter on the other from the offering of the
Offered Notes but also the relative fault of the Company on the one hand and the
Underwriter on the other in connection with the statements or omissions which
resulted on such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and of [each/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 relates to information supplied by the Company or by such
Underwriter, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) or willful failure to comply with
Section 8 shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation or failure to comply with Section 8 hereto,
as the case may be. For purposes of this Section, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as such Underwriter, and each director of
the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Company.
This indemnity agreement will be in addition to any liability that any
Underwriter may otherwise have. Notwithstanding the provisions of this Section
6, no Underwriter shall be required to contribute any amount in excess of the
amount by
-10-
which the total price at which the Notes underwritten by it and distributed to
the public were sold to the public 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.
Section 7. Default by an Underwriter.
(a) If, on the Closing Date, any Underwriter defaults in the
performance of its obligations under this Agreement and the aggregate principal
amount of Offered Notes that such defaulting Underwriter [or Underwriters]
agreed but failed to purchase does not exceed 10% of the total principal amount
of Offered Notes that the Underwriter[s] [is/are] obligated to purchase on the
Closing Date, the non-defaulting Underwriters may make arrangements for the
purchase of the Offered Notes which such defaulting Underwriter agreed but
failed to purchase by other persons satisfactory to the Company and the
non-defaulting Underwriter[s]. If any Underwriter [or Underwriters] so default
and the aggregate principal amount of Offered Notes with respect to which such
default or defaults occur exceeds 10% of the total principal amount of Offered
Notes that the Underwriter[s] [is/are] obligated to purchase on such Closing
Date and arrangements satisfactory to the non-defaulting Underwriter[s] and the
Company for the purchase of such Offered Notes by other persons are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of the non-defaulting Underwriter or the Company, except
that the Company will continue to be liable for the payment of expenses to the
extent set forth in Section 4(h) and except that the provisions of Sections 6
and 8 shall not terminate and shall remain in effect. As used in this Agreement,
the term "Underwriter[s]" includes, for all purposes of this Agreement unless
the context otherwise requires, any party not listed in Schedule 1 hereto that,
pursuant to this Section 7 purchases Notes which a defaulting Underwriter agreed
but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to the Company [or any non-defaulting Underwriter]
for damages caused by its default. If other persons are obligated or agree to
purchase the Notes of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion of the counsel
for the Company or counsel for the Underwriter[s] may be necessary in the
Registration Statement and/or the Prospectus or in any other document or
arrangement, and the Company agrees to promptly prepare any amendment or
supplement to the Registration Statement and/or the Prospectus that effects any
such changes.
Section 8. Computational Materials and ABS Term Sheets.
(a) The parties acknowledge that, subsequent to the date on which
the Registration Statement became effective and up to and including the date on
which the Prospectus with respect to the offered Notes is first made available
to the Underwriter[s], the Underwriter[s], including any member of its selling
group, may furnish to various potential investors in Notes, in writing: (i)
"Computational Materials," as defined in a no-action letter (the "▇▇▇▇▇▇
No-Action Letter") issued by the staff of the Commission on May 20, 1994 to
▇▇▇▇▇▇, Peabody Acceptance Corporation I, et al., as modified by a no-action
letter (the "First PSA
-11-
No-Action Letter") issued by the staff of the Commission on May 27, 1994 to the
Public Securities Association (the "PSA") and as further modified by a no-action
letter (the "Second PSA No-Action Letter," and together with the ▇▇▇▇▇▇
No-Action Letter and the First PSA No-Action Letter, the "No-Action Letters")
issued by the staff of the Commission on February 17, 1995 to the PSA; (ii)
"Structural Term Sheets," as defined in the Second PSA No-Action Letter and/or
(iii) "Collateral Term Sheets," as defined in the Second PSA No-Action Letter.
(b) In connection with the Offered Notes, [each/the ]Underwriter
shall furnish to the Company, at least one business day prior to the time of
filing of the Prospectus pursuant to Rule 424 under the 1933 Act, all
Computational Materials used by such Underwriter, or any member of its selling
group, and required to be filed with the Commission in order for such
Underwriter to avail itself of the relief granted in the No-Action Letters (such
Computational Materials, the "Furnished Computational Materials").
(c) In connection with the Offered Notes, [each/the] Underwriter
shall furnish to the Company, at least one business day prior to the time of
filing of the Prospectus pursuant to Rule 424 under the 1933 Act, all Structural
Term Sheets used by such Underwriter, or any member of its selling group, and
required to be filed with the Commission in order for such Underwriter to avail
itself of the relief granted in the No-Action Letters (such Structural Term
Sheets, the "Furnished Structural Term Sheets").
(d) In connection with the Offered Notes, [each/the] Underwriter
shall furnish to the Company, within one business day after the first use
thereof, all Collateral Term Sheets used by such Underwriter, or any member of
its selling group, and required to be filed with the Commission in order for
such Underwriter to avail itself of the relief granted in the No-Action Letters
(such Collateral Term Sheets, the "Furnished Collateral Term Sheets" and
together with the Furnished Structural Term Sheets, the "Furnished Term Sheets")
and shall advise the Company of the date on which each such Collateral Term
Sheet was first used.
(e) The Company shall cause to be filed with the Commission one or
more current reports on Form 8-K (collectively, together with any amendments and
supplements thereto, the "8-Ks," and each an "8-K") with respect to all
Furnished Computational Materials and Furnished Term Sheets used by an
Underwriter or any member of its selling group such that such Underwriter may
avail itself of the relief granted in the No-Action Letters. In particular, the
Company shall cause to be filed with the Commission (i) all of the Furnished
Computational Materials and all of the Furnished Structural Term Sheets on an
8-K prior to or concurrently with the filing of the final Prospectus with
respect to the Notes pursuant to Rule 424 under the 1933 Act; and (ii) all of
its Furnished Collateral Term Sheets on an 8-K not later than two business days
after the first use thereof.
(f) [Each/The] Underwriter represents and warrants to, and covenants
with, the Company that as presented in any Furnished Term Sheets, the
Underwriter Information (defined below) is not misleading and not inaccurate in
any material respect and that any Pool Information (defined below) contained in
any Furnished Term Sheets prepared by it which is not otherwise inaccurate in
any material respect is not presented in such Furnished Term Sheets prepared by
it in a way that is either misleading or inaccurate in any material respect.
-12-
[The/Each] Underwriter further covenants with the Company that if any
Computational Materials or ABS Term Sheets (as such term is defined in the
Second PSA No-Action Letter) contained in any Furnished Term Sheets are found to
include any information that is misleading or inaccurate in any material
respect, such Underwriter promptly shall inform the Company of such finding and
provide the Company with revised and/or corrected Computational Materials or ABS
Term Sheets, as the case may be and the Company shall cause to be delivered for
filing to the Commission in accordance herewith, an 8-K containing such revised
and/or corrected Computational Materials or ABS Term Sheets, as the case may be.
(g) [Each/The] Underwriter covenants that all Computational
Materials and ABS Term Sheets used by it shall contain the following legend:
"THE INFORMATION INCLUDED HEREIN IS PRODUCED AND PROVIDED
EXCLUSIVELY BY [UNDERWRITER] ("UNDERWRITER") AS UNDERWRITER FOR THE
[___________] TRUST 200_-_ AND NOT BY _______ OR AS AGENT FOR
[____________] OR ANY OF ITS AFFILIATES (COLLECTIVELY, THE
"TRANSFEROR")."
(h) [The/Each] Underwriter covenants that all Collateral Term Sheets
used by it shall contain the following additional legend:
"THE INFORMATION HEREIN IS PRELIMINARY AND WILL BE SUPERSEDED BY THE
APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER INFORMATION
SUBSEQUENTLY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION."
(i) [The/Each] Underwriter covenants that all Collateral Term Sheets
(other than the initial Collateral Term Sheet) shall contain the following
additional legend:
"THE INFORMATION CONTAINED HEREIN SUPERSEDES THE INFORMATION IN ALL
PRIOR COLLATERAL TERM SHEETS, IF ANY."
(j) Notwithstanding the foregoing, subsection 8(g) will be satisfied
if all Computational Materials and ABS Term Sheets referred to therein bear a
legend in a form approved by the Company.
(k) For purposes of this Agreement, the term "Underwriter
Information" means such portion, if any, of the information contained in any
Furnished Term Sheets that is not Pool Information or Prospectus Information;
provided, however, that information contained in Furnished Term Sheets that is
not Pool Information or Prospectus Information (as those terms are defined
below) shall not constitute Underwriter Information to the extent such
information is inaccurate or misleading in any material respect directly as a
result of it being based on Pool Information or Prospectus Information that is
inaccurate or misleading in any material respect. "Pool Information" means the
information furnished to the Underwriter[s] by the Company regarding the Loans
and "Prospectus Information" means the information contained in (but not
-13-
incorporated by reference in) any Prospectus, provided, however, that if any
information that would otherwise constitute Pool Information or Prospectus
Information is presented in any Furnished Term Sheets in a way that is either
inaccurate or misleading in any material respect, such information shall not be
Pool Information or Prospectus Information.
Section 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Offered Notes to the Underwriters.
Section 10. Termination of Agreement. The Underwriter[s] may
terminate this Agreement, by notice to the Company, at any time at or prior to
the Closing Date without liability on the part of any Underwriter to the
Company, if, prior to delivery and payment for the Notes, (i) there has occurred
any material adverse change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation thereof or other calamity
or crisis the effect of which is such as to make it, in the judgment of the
Underwriter[s], impracticable to market the Offered Notes on the terms and in
the manner contemplated by the Prospectus, or (ii) if trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said Exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium has been declared by either Federal or New York authorities.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and effective only on receipt and shall have been duly given
if mailed via the U.S. Postal Service and a reputable overnight delivery
service, hand delivered, sent by facsimile transmission or another reasonable
and standard form of telecommunication. Notices to Barclays shall be directed to
Barclays Capital Inc. at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
[_______], Esq.; notices to _________ shall be directed to ________________,
________________, ___________, ________________, Attention: _________________;
and notices to the Company shall be directed to it at
[________________________________], [200 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇],
attention of the Secretary with a copy to the Treasurer; or, as to either party,
such other address as may hereafter be furnished by such party to the other in
writing.
Section 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriter[s] and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriter[s] and the Company and their respective successors and the
controlling persons and officers and directors referred to in Section 6 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.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Underwriter[s]
-14-
and the Company and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of Offered
Notes from the Underwriters shall be deemed to be a successor by reason merely
of such purchase.
Section 13. Governing Law; Time; Jurisdiction; Waiver of Objection
to Venue. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in said State. Specified times of day refer to New York City time.
Section 14. Execution in Counterparts; Severability; Integration.
This Agreement may be executed in any number of counterparts, each of which
shall for all purposes be deemed to be an original and all of which when taken
together shall constitute but one and the same Agreement. In case any provision
in or obligation under this Agreement shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby. This
Agreement contains the final and complete integration of all prior expressions
by the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and shall constitute entire Agreement among the parties
hereto with respect to the subject matter hereof, superseding all prior oral or
written understandings.
[SIGNATURE PAGE FOLLOWS]
-15-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement among each of the Underwriters and the Company in accordance with its
terms.
Very truly yours,
[________________________________]
By:____________________________________
Name: _________________________________
Title: ________________________________
CONFIRMED AND ACCEPTED, as of the date first above written:
BARCLAYS CAPITAL INC.
By:____________________________________
Name: _________________________________
Title: ________________________________
[________________________________]
By:____________________________________
Name: _________________________________
Title: ________________________________
Exhibit 1.1
SCHEDULE A
Purchase Price as a Percentage
Aggregate Principal Amount of of the Aggregate Principal
Underwriter Notes to be Purchased Amount of Notes to be Purchased
----------- ----------------------------- -------------------------------
