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EXHIBIT 1.1
CMC SECURITIES CORPORATION III
COLLATERALIZED MORTGAGE OBLIGATIONS
(Issuable in Series)
UNDERWRITING AGREEMENT
March 27, 1998
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
CMC Securities Corporation III (the "Company"), a Delaware corporation
and wholly-owned subsidiary of Capstead Mortgage Corporation, a Maryland
corporation ("Capstead"), proposes to issue its Collateralized Mortgage
Obligations of the series (each, a "Series") and classes designated at the time
of sale (the "Bonds"). The Bonds shall be issued under an indenture, dated as
of March 1, 1998 (the "Original Indenture"), between the Company and The First
National Bank of Chicago, as trustee (the "Indenture Trustee"), as supplemented
from time to time by one or more supplemental indentures, each providing for
the issuance of a Series of Bonds (the "Series Supplements") between the
Company and the Indenture Trustee. Such Original Indenture, as supplemented
from time to time hereafter, and as supplemented by the Series Supplements,
with any changes therein made with your consent, and, with your consent any
other indenture is herein referred to as the "Indenture." Capstead joins this
agreement for the purposes set forth herein.
Underwritten Offerings of Bonds may be made through you or through an
underwriting syndicate managed by you. The Company proposes to sell one or
more Series of the Bonds or certain Classes of Bonds of one or more Series to
you and to each of the other several underwriters, if any, participating in an
underwriting syndicate managed by you. It is understood, however, that the
Company may elect to retain, through the execution of one or more underwriting
agreements in addition to this Agreement, one or more additional underwriters
other than you to underwrite, or manage the underwriting syndicate with respect
to, any offering of one or more Series of its Bonds.
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Whenever the Company determines to make such an offering of Bonds
through you, it will enter into an agreement (the "Terms Agreement") providing
for the sale of such Bonds to, and the purchase and offering thereof by, you
and such other underwriters, if any, selected by you as have authorized you to
enter into such Terms Agreement on their behalf (the underwriters designated in
any such Terms Agreement being referred to herein as "Underwriters," which term
shall include you whether acting alone in the sale of any Series of Bonds or as
a member of the underwriting syndicate). The Terms Agreement relating to each
offering of Bonds shall specify the principal amount of Bonds to be issued and
their terms not otherwise specified in the Indenture, a brief description of
the Conventional Certificates (as defined below) to be pledged as security
therefor, the names of the Underwriters participating in such offering (subject
to substitution as provided in Section 11 hereof) and the principal amount of
the Bonds which each severally agrees to purchase, the names of such other
Underwriters, if any, acting as co-managers with you in connection with such
offering, the price at which the Bonds are to be purchased by the Underwriters
from the Company, the initial public offering price (or the manner in which
such prices shall be determined), the time and place of delivery of and payment
for the Bonds, and such other information as may be agreed upon. The Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written telecommunication
between you and the Company. Each offering of Bonds through you will be
governed by this Agreement, as supplemented by the applicable Terms Agreement,
and this Agreement and such Terms Agreement shall inure to the benefit of and
be binding upon each Underwriter participating in the offering of such Bonds.
At their date of issuance, the Bonds of each Series underwritten by you
will be secured by a pledge to the Indenture Trustee of, among other things,
Conventional Certificates (as defined in the Indenture) (collectively, the
"Conventional Certificates"). The Bonds are more fully described in the
Registration Statement (as defined below). Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-47913), a related
preliminary prospectus and related preliminary prospectus supplements for the
registration of the Bonds under the Securities Act of 1933 (the "1933 Act"),
which registration statement, as most recently amended, was declared effective
on February 16, 1994. Such registration statement, as from time to time
amended through the date of the Terms Agreement, including all exhibits thereto
and all documents therein incorporated by reference from time to time pursuant
to Item 12 of Form S-3 under the 1933 Act that were filed under the Securities
Exchange Act of 1934 (the "1934 Act"), on or before the effective date of such
registration statement, but excluding the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of 1939 (the "1939
Act"), is hereinafter referred to as the "Registration Statement." The
prospectus in the form in which it appears in the Registration Statement,
including all documents therein incorporated by reference from time to time
pursuant to the 1934 Act, is hereinafter referred to as the "Basic Prospectus".
The Basic Prospectus, as amended to the date hereof and as supplemented by the
prospectus supplement or supplements relating to a particular Series of the
Bonds, each in the form first filed after the date of the related Terms
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Agreement with the Commission pursuant to Rule 424 under the 1933 Act,
including any documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act that were filed under the 1934 Act on or before
the date of such prospectus supplement (such prospectus supplement, including
such incorporated documents, in the form first filed after the date of the
related Terms Agreement pursuant to Rule 424(b) being hereinafter termed the
"Prospectus Supplement"), is hereinafter referred to as the "Final Prospectus".
Any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Final Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the filing of any document
under the 1934 Act after the effective date of the Registration Statement or
the issue date of the Final Prospectus or Prospectus Supplement, as the case
may be, deemed to be incorporated therein by reference pursuant to Item 12 of
Form S-3 under the 1933 Act.
SECTION 1. Representations and Warranties. The Company and Capstead
(on behalf of itself and its wholly owned subsidiary, Capstead Capital
Corporation ("CCC"), as applicable), jointly and severally, represent and
warrant to you as of the date hereof, and to each Underwriter named in a Terms
Agreement as of the date thereof (in each case the "Representation Date"), as
follows:
(a) The Registration Statement, at the time it became
effective, complied and, as of the date hereof, does comply, in all
material respects with the requirements of the 1933 Act and the rules
and regulations of the Commission thereunder (the "1933 Act
Regulations") and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Final
Prospectus at the time it is mailed to the Commission for filing
pursuant to Rule 424 under the Act and at the Closing Time referred to
in Section 2 will not contain 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 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 (i) the Registration Statement or Final Prospectus made
in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through you expressly for use in
the Registration Statement or Final Prospectus or (ii) the Current
Report (as defined in Section 3(b) below), or in any amendment thereof
or supplement thereto, incorporated by reference in such Registration
Statement or such Final Prospectus (or any amendment thereof or
supplement thereto). There are no material contracts or documents of
the Company which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or the 1933 Act Regulations which
have not been so filed.
(b) At the time the Registration Statement became effective
the Indenture Trustee was duly qualified under the requirements of the
1939 Act and the rules and regulations of the Commission thereunder (the
"1939 Act Regulations"), and at the Closing Time the Indenture will be
so qualified and will conform in all material respects with the
requirements of the 1939 Act and the 1939 Act Regulations.
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(c) The documents incorporated by reference in the
Registration Statement and the applicable Final Prospectus, at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission thereunder, and, when
read together and with the other information in the applicable Final
Prospectus, at the time the Registration Statement and any amendments
thereof became effective, and at the time such Final Prospectus is filed
with the Commission, did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, 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 the Current Report.
(d) The accountants who reported on the balance sheet included
or incorporated by reference in the Registration Statement are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(e) The balance sheet of the Company included or incorporated
by reference in the Registration Statement presents fairly the financial
position of the Company at the date indicated, and has been prepared in
conformity with generally accepted accounting principles.
(f) Since the respective dates as of which information is
given in the Registration Statement or, if later, the applicable Final
Prospectus, except as otherwise stated therein, there has been no
material adverse change in the condition, financial or otherwise,
earnings, business affairs, or business prospects of the Company.
(g) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with power and authority (corporate and other) to own, lease
and operate its properties and conduct its business as described in the
Registration Statement, and, at the Closing Time, the Company will be
duly qualified as a foreign corporation to transact business and will be
in good standing in the State of Texas. The Company is not required to
qualify to do business as a foreign corporation under the laws of any
other state. The Company has no subsidiaries.
(h) The authorized, issued and outstanding capital stock of
the Company is as set forth (or incorporated) in the Registration
Statement, and the shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable, and are owned of record and beneficially by
Capstead, free and clear of any lien, charge, option, warrant, security
interest, encumbrance, voting trust or similar arrangement.
(i) Neither the Company nor Capstead is in violation of its
charter or bylaws. The Company is not in default in the performance or
observance of any obligation,
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agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it is
a party or by which it or its properties may be bound, which violations
or defaults separately or in the aggregate would have a material adverse
effect on the Company.
(j) The Company owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease, own or license, as the case may be,
and to operate, its properties and to carry on its business as described
in the Registration Statement or, if later, the applicable Final
Prospectus; and the Company has conducted and is conducting its business
so as to comply in all material respects with all applicable laws,
administrative regulations and administrative and court decrees.
(k) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending
against the Company or, to the knowledge of the Company and Capstead,
threatened against the Company (except as set forth in the Registration
Statement or, if later, the applicable Final Prospectus) which could
reasonably be expected to result in any material adverse change in the
condition, financial or otherwise, earnings, business affairs, or
business prospects of the Company which could reasonably be expected to
interfere with or materially and adversely affect the consummation of
the transactions contemplated herein.
(l) The execution and delivery of this Agreement, the Original
Indenture, the related Series Supplement, the related pooling and
servicing agreement ("Pooling and Servicing Agreement"), the related
mortgage loan purchase agreement executed by CCC ("Mortgage Loan
Purchase Agreement") and the related assignment, assumption and
recognition agreements executed by the Company and CCC (as applicable,
the "Assignment Agreements"), the incurrence of the obligations herein
set forth and the consummation of the transactions contemplated herein
and therein have been, and the execution and delivery of each Terms
Agreement and the consummation of the transactions contemplated therein
will have been (before the issuance of the related Bonds), duly
authorized by the Company and/or Capstead, as applicable, by all
necessary action (corporate and other); this Agreement, the Original
Indenture, the related Series Supplement, the related Pooling and
Servicing Agreement, the related Mortgage Loan Purchase Agreement and
each Assignment Agreement have each been, and the Terms Agreement, when
executed and delivered, will have been, duly executed and delivered by
the Company, CCC and/or Capstead, as applicable, enforceable in
accordance with their terms, subject, as to enforceability of remedies,
to applicable bankruptcy, insolvency, reorganization, or other laws
affecting creditors' rights generally, and to general principles of
equity and equitable remedies (regardless of whether the enforceability
of such remedies is considered in a proceeding in equity or at law).
Neither the execution and delivery of this Agreement, the Original
Indenture, the related Series Supplement, the related Pooling and
Servicing Agreement, the related Mortgage Loan Purchase Agreement, the
related Assignment Agreements or the
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Terms Agreement, the incurrence of the obligations herein or therein set
forth, nor the consummation of the transactions contemplated herein or
therein will conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, mortgage, pledge,
charge, security interest or encumbrance (collectively, "Lien") upon any
property or assets of the Company, CCC or Capstead, as applicable,
pursuant to any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company, CCC or Capstead, as
applicable, is a party or by which any of them may be bound, or to which
any of the property or assets of any of them is subject (other than the
Lien created pursuant to the Indenture), which separately or in the
aggregate are material, nor will any such action result in any violation
of the provisions of the charter or bylaws of either of the Company, CCC
or Capstead, or, to the best of such entity's knowledge, of any law,
administrative regulation or administrative or court decree.
(m) The issuance of the Bonds underwritten by you has been
duly authorized by the Company (or will have been so authorized prior to
each issuance of Bonds underwritten by you) and, when such Bonds are
executed and authenticated and delivered in accordance with the
Indenture and sold to the Underwriters pursuant to this Agreement and
any Terms Agreement, such Bonds will be entitled to the benefits and
security provided by the Indenture and will constitute the legal, valid
and binding non-recourse obligations of the Company enforceable in
accordance with their terms, but otherwise subject, as to enforceability
of remedies, to applicable bankruptcy, insolvency, reorganization or
other laws affecting creditors' rights generally, and to general
principles of equity and equitable remedies (regardless of whether the
enforceability of such remedies is considered in a proceeding in equity
or at law).
(n) The Bonds of each Series underwritten by you and the
Indenture will conform in all material respects to the respective
descriptions thereof contained in the applicable Final Prospectus,
except that no representation or warranty is made that the Bonds conform
with any description thereof contained in the Current Report.
(o) At the time of execution of the related Pooling and
Servicing Agreement, the Company will own the Mortgage Loans being
transferred to the Trust pursuant to such Pooling and Servicing
Agreement, free and clear of any lien, adverse claim, mortgage, charge,
pledge or other encumbrance or security interest, and will not have
assigned to any other person any of its right, title or interest in such
Mortgage Loans; and, upon the execution of the related Pooling and
Servicing Agreement, the Company will transfer all its right, title and
interest in such Mortgage Loans to the Certificate Trustee.
(p) As of the Closing Time with respect to a Series of Bonds,
the Mortgage Loans will be duly and validly assigned in blank or to the
Certificate Trustee (or its nominee), the related Mortgage Notes will be
endorsed in blank or to the Certificate Trustee (or its nominee) and
delivered to the Certificate Trustee or to an agent on its behalf and,
where required in order to transfer all right, title and interest to a
Mortgage Loan, upon the
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recordation of assignments to the Certificate Trustee of the related
mortgages in the public records in which such mortgage shall have been
recorded, the Certificate Trustee will own each such Mortgage Loan,
subject to no prior lien, mortgage, security interest, pledge, charge or
other encumbrance, except as permitted under the related Pooling and
Servicing Agreement.
(q) At the Closing Time with respect to a Series of Bonds, the
Company will own (i) the Conventional Certificates listed in Schedule A
to the Series Supplement relating to the applicable Series of Bonds and
(ii) the money or other assets specified or referred to in the granting
clauses of such Series Supplement as being pledged to the Indenture
Trustee at Closing Time (together, the "Initial Collateral"), free and
clear of any Lien, except the Lien of the Indenture; the Company has
power and authority (corporate and other) to assign, pledge and deliver
the Initial Collateral to the Indenture Trustee under the Indenture, and
will have duly authorized such assignment, pledge and delivery to the
Indenture Trustee by all necessary corporate action.
(r) As of the Closing Time with respect to a Series of Bonds,
the Company will have assigned, pledged and delivered to the Indenture
Trustee under the Indenture all of its right, title and interest in and
to, among other things, (i) Conventional Certificates with an aggregate
outstanding principal balance as of such Closing Time at least equal to
the aggregate original principal amount of the Bonds of the applicable
Series then being issued and (ii) cash and/or other assets, if any, in
the amount set forth in the related Series Supplement.
(s) At the Closing Time with respect to a Series of Bonds,
each Conventional Certificate listed on Schedule A to the Series
Supplement relating to the applicable Series of Bonds will have been
duly and validly assigned, pledged and delivered to the Indenture
Trustee, or its nominee, and together with such assignment, pledge and
delivery of each Conventional Certificate, the filing of a UCC-1
financing statement with respect to the Conventional Certificates in the
office of the Secretary of State of the State of Texas and in such other
jurisdictions, if any, as the Company deems appropriate and the
possession by the Indenture Trustee, or its nominee, of the Conventional
Certificates and of the monies and/or other assets, if any, specified in
the related Series Supplement, will create as security for repayment of
the Bonds a valid, perfected first security interest. The information
set forth with respect to the Conventional Certificates in Schedule A to
the related Series Supplement will as of the Closing Time of such Series
be true and correct in all material respects.
(t) The Company is not, and will not as a result of the offer
and sale of the Bonds as contemplated in this Agreement and any
applicable Terms Agreement become, an "investment company" or under the
"control" of an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act") which would be required to register under the Investment Company
Act.
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(u) The related Pooling and Servicing Agreement will not be
required to be qualified under the Trust Indenture Act of 1939, as
amended.
(v) The representations and warranties made by the Company in
the Indenture and the related Pooling and Servicing Agreement and made
in any Officers' Certificate of the Company delivered pursuant to the
Original Indenture or the related Pooling and Servicing Agreement will
be true and correct at the time made and at the Closing Time.
(w) The related Pooling and Servicing Agreement, the
Conventional Certificates created thereby and the mortgage loans
evidenced thereby shall conform in all material respects to the
respective descriptions thereof contained in the applicable Final
Prospectus, except that no representation is made that the Conventional
Certificates conform with the descriptions thereof (if any) contained in
the Current Report.
(x) Any certificate signed by an officer of the Company or
Capstead and delivered to you or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company or Capstead,
respectively, to each Underwriter as to the matters covered thereby.
(y) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body of
the United States is required for the issue and sale of the Bonds, or
the consummation by the Company of the other transactions contemplated
by this Agreement, each Terms Agreement or the Indenture, except such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Bonds by the Underwriters or
as have been obtained.
(z) At the Closing Time of a Series, the Bonds of such Series
shall have been rated in the highest rating category by at least two
nationally recognized statistical rating organizations or in such lower
rating categories as are acceptable to the Underwriters.
(aa) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement,
the related Terms Agreement, the Indenture and the Bonds have been paid
or will be paid at or prior to the Closing Time.
(bb) All of the information regarding the characteristics of
the Mortgage Loans contained in the Registration Statement or furnished
to you by the Company in writing or by electronic transmission is true
and correct.
SECTION 2. Sale and Delivery to the Underwriters; Closing. The
several commitments of the Underwriters to purchase Bonds pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each Underwriter, severally and
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not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, the respective original principal amounts of the
Bonds set forth in the applicable Terms Agreement opposite the name of such
Underwriter, plus any additional original principal amount of Bonds which such
Underwriter may be obligated to purchase pursuant to Section 11 hereof.
Delivery of, and payment of the purchase price for, the Bonds shall be
made at the office of Xxxxxxx & Xxxxx L.L.P., 0000 Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, or at such other place as shall be agreed upon by you and
the Company, at 10:00 A.M. (Dallas time) on the date set forth in the
applicable Terms Agreement, or such other time as shall be agreed upon by you
and the Company (such time and date being referred to as the "Closing Time").
Payment shall be made in immediately available or next day funds as specified
in the Terms Agreement, payable to or upon the order of the Company, against
delivery to you for the respective accounts of the Underwriters of the Bonds to
be purchased by them. Such Bonds shall be in such denominations and registered
in such names as you may request in writing at least two business days prior to
the Closing Time. The Bonds will be made available for your examination in
Dallas, Texas not later than 10:00 A.M. on the Business Day prior to the
Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with you,
and with each Underwriter participating in the offering of the applicable
Series of Bonds, as follows:
(a) Immediately following the execution of each Terms
Agreement, the Company will prepare a Final Prospectus setting forth the
principal amount of Bonds covered thereby and their terms not otherwise
specified in the Indenture, the names of the Underwriters participating
in the offering and the principal amount of Bonds which each severally
has agreed to purchase, the names of any Underwriters acting as
co-managers with you in connection with the offering, the price at which
the Bonds are to be purchased by the Underwriters from the Company, and
such other information as you and the Company deem appropriate in
connection with the offering of the Bonds. The Company will promptly
transmit copies of the Final Prospectus to the Commission for filing
pursuant to Rule 424 of the 1933 Act Regulations and will furnish to the
Underwriters named therein as many copies of the Final Prospectus as you
shall reasonably request.
(b) The Company will cause any materials provided by you
pursuant to Section 8 below ("Section 8 Materials") with respect to the
Bonds that are delivered by you to the Company pursuant to Section 8
hereof to be filed with the Commission on a Current Report on Form 8-K
(the "Current Report") pursuant to Rule 13a-11 under the 1934 Act not
later than the Business Day immediately following the Business Day on
which all such Section 8 Materials are delivered to counsel for the
Company by you prior to 3:00 p.m. Dallas, Texas time, and will promptly
advise you when such Current Report has been filed, provided that in any
event the Company will cause the Section 8 Materials to be so filed not
later than the date on which the related Final Prospectus is required to
be so filed pursuant to Rule 424 under the 1933 Act. Such Current
Report shall be incorporated by reference in such Final Prospectus and
the related Registration Statement. Notwithstanding the two preceding
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sentences, the Company shall have no obligation to file any Section 8
Materials which, in the reasonable determination of the Company (a "Non-
Filing Determination"), are not required to be filed pursuant to the
Xxxxxx Letter or the PSA Letter (as defined in Section 8 below), or
which contain erroneous information or contain any untrue statement of a
material fact or, when read in conjunction with the Final Prospectus and
Prospectus Supplement, omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading (it being understood, however, that the Company shall have no
obligation to review or pass upon the accuracy or adequacy of, or to
correct, any Section 8 Materials); provided that, in the event of a
Non-Filing Determination, the Company shall immediately notify you in
writing of the reasons for such Non-Filing Determination; and, provided,
further, that the Company shall file those Section 8 Materials for which
you have specifically confirmed in writing that the items giving rise to
the Non-Filing Determination are complete and correct and that you are
advising the Company to file such Section 8 Materials.
(c) The Company will notify you immediately, and in writing
confirm the notice, (i) of the receipt of any comments from the
Commission, (ii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Final
Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose, (iv) of receipt by the Company of any notification with respect
to the suspension of the qualification of the Bonds for sale in any
jurisdiction or the initiation or threat of any proceeding for that
purpose, and (v) of the happening of any event which makes untrue any
statement of a material fact made in, or results in the omission of
material information from, the Registration Statement or in any Final
Prospectus then required to be distributed or which requires the making
of a change in the Registration Statement or any such Final Prospectus
in order to make any material statements therein, in the light of the
circumstances under which they were made, not misleading. 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.
(d) The Company will give you notice of its intention to file
any amendment to the Registration Statement or any amendment or
supplement to the Final Prospectus, whether pursuant to the 1934 Act,
1933 Act or otherwise, and will not file any such amendment or
supplement without furnishing a copy thereof to you and counsel for the
Underwriters and obtaining your consent to such filing, which consent
shall not be unreasonably withheld or delayed.
(e) The Company will deliver to you, as soon as practicable,
as many signed copies of the Registration Statement as originally filed
and of each amendment thereto, with signed consents and exhibits filed
therewith (including exhibits incorporated by reference therein and
documents incorporated by reference in the Final Prospectus), and will
also
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deliver to you such number of conformed copies of the Registration
Statement as originally filed and of each amendment thereto (including
consents and exhibits) as you may reasonably request.
(f) The Company will furnish to each Underwriter, from time to
time during the period when the Final Prospectus is required to be
delivered under the 1933 Act, such number of copies of the Final
Prospectus (as amended or supplemented), other than exhibits to the
related Current Report, as it may reasonably request for the purposes
contemplated by the 1933 Act or the 0000 Xxx.
(g) If at any time when a prospectus relating to the Bonds is
required to be delivered under the 1933 Act any event occurs as a result
of which the applicable Final Prospectus as then amended or supplemented
would include an untrue statement of a material fact, or omit to state
any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if
it is necessary at any time to amend such Final Prospectus to comply
with the 1933 Act, the Company, subject to subparagraph (d) above,
promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance; provided, however, that the Company
will not be required to file any such amendment or supplement with
respect to any Section 8 Materials incorporated by reference in the
Final Prospectus other than any amendments or supplements of such
Section 8 Materials that the Company determines to file in accordance
therewith.
(h) The Company will endeavor, in cooperation with you and
counsel for the Underwriters, to qualify the Bonds for offering and sale
under the applicable securities and Blue Sky laws of such jurisdictions
as you may reasonably designate, and will maintain such qualification in
effect for a period of not less than one year after the date hereof,
unless the offering and sale of the Bonds is exempt from such
qualification under the Secondary Mortgage Market Enhancement Act of
1984, and will cooperate with you and counsel for the Underwriters, to
determine the eligibility of the Bonds for investment by institutional
investors in such jurisdictions. The Company will, at your request or
the request of counsel for the Underwriters, file such statements and
reports as may be required by the laws of each jurisdiction in which the
Bonds have been qualified as above provided. Notwithstanding the
foregoing, no such qualification shall be required in any jurisdiction
where, as a result thereof, the Company would be subject to general
service of process, other than by reason of the offer and sale of the
Bonds, qualification as a foreign corporation or to taxation as a
foreign corporation doing business in such jurisdiction.
(i) The Company will make generally available to its security
holders and will deliver to you as soon as practicable an earnings
statement, conforming to the requirements of Section 11(a) of the 1933
Act, covering a period of at least twelve months beginning after
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the effective date of the Registration Statement. Compliance with Rule
158 under the 1933 Act shall satisfy the requirements of this paragraph.
(j) So long as any Bonds are outstanding, the Company will
furnish to you (or cause to be furnished to you) as soon as practicable
upon your written request:
(i) copies of the annual reports and other items
required to be delivered to the Bondholders pursuant to the
Indenture;
(ii) copies of any reports and financial statements
furnished to or filed with the Commission or any national
securities exchange by the Company; and
(iii) information as to the outstanding principal
balances of the mortgage loans underlying the Conventional
Certificates, and, to the extent that such information has been
maintained in the ordinary course of business by the Company,
such other information as may reasonably be requested by you
which in your judgment is necessary or appropriate to the
maintenance of a secondary market in the Bonds.
(k) So long as any Bonds of any Series underwritten by you are
outstanding, Capstead will furnish to you within five days after they
are available, upon your written request, copies of all reports filed by
Capstead under the 1934 Act.
(l) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13 or 14 of the 1934 Act; provided, however, that the Company will not
be required to file any amendment or supplement to the Current Report
incorporated by reference in the Prospectus other than any amendments or
supplements thereto that are furnished to the Company by you pursuant to
Section 8 hereof which the Company determines to file in accordance
therewith.
(m) The Company shall prepare and file with the Commission,
within the period provided in the related Final Prospectus, its Current
Report on Form 8-K which shall include such detailed information,
schedules and reports (the "Detailed Description") regarding the
Conventional Certificates and the mortgage loans underlying such
Conventional Certificates relating to the Series of Bonds offered by
such Final Prospectus (the "Mortgage Loans") as you may reasonably
request.
(n) During the period, if any, commencing on the date of the
applicable Terms Agreement and expiring on the date specified in such
Terms Agreement (the "Stand-Off Period"), neither the Company nor
Capstead or any subsidiary thereof will, without your prior written
consent or as may be otherwise permitted by such Terms Agreement, offer
or sell, or enter into any agreement to sell to the public, any
mortgage-related or
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mortgage-backed securities issued by any of them which are similar to
the Bonds. The provisions of this subparagraph (n) do not apply to
securities issued or guaranteed by GNMA, FNMA or FHLMC.
SECTION 4. Payment of Expenses. Unless otherwise specified in the
applicable Terms Agreement, the Company will pay, and Capstead will cause the
Company to pay, the following expenses incident to the performance of the
Company's obligations under this Agreement and the applicable Terms Agreement:
(i) the filing of the Registration Statement with respect to the Bonds and all
amendments thereto, (ii) the printing or photocopying and delivery to the
Underwriters, in such quantities as you may reasonably request, of copies of
this Agreement and the Terms Agreement, (iii) the preparation, registration,
issuance and delivery to the Underwriters of the Bonds underwritten pursuant to
this Agreement, (iv) the fees and disbursements of the Company's counsel, (v)
the printing and delivery to the Underwriters, in such quantities as you may
reasonably request, of copies of the Registration Statement with respect to the
Bonds underwritten pursuant to this Agreement and all amendments thereto, of
any preliminary prospectus and preliminary prospectus supplement and of the
Final Prospectus and all amendments and supplements thereto and all documents
incorporated therein (other than exhibits to the Current Report), of any
private placement memoranda with respect to Bonds that are to be privately
placed, and of any Blue Sky and Legal Investment Surveys, and (vi) the printing
or photocopying and delivery to the Underwriters, in such quantities as you may
reasonably request, of copies of the Indenture. In addition, you will pay (or
cause to be paid) the remaining expenses incident to the transactions
contemplated by this Agreement and the applicable Terms Agreement, including
and without limitation those related to: (A) the qualification of the Bonds
underwritten pursuant to this Agreement under securities and Blue Sky laws and
the determination of the eligibility of the Bonds for investment in accordance
with the provisions of Section 3(h), including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of any Blue Sky Survey and Legal
Investment Survey, (B) the fees and expenses of your counsel, (C) the fees and
expenses of the Independent Accountants under Section 5(f) hereof, (D) the fees
charged by investment rating agencies for rating the Bonds underwritten
pursuant to this Agreement, (E) the fees and expenses, if any, incurred in
connection with the listing of the Bonds underwritten pursuant to this
Agreement on any national securities exchange, and (F) the fees and expenses of
the Indenture Trustee and its counsel.
If this Agreement is terminated by you in accordance with the provisions
of Section 5 or 10(b)(i), the Company shall, and Capstead will cause the
Company to, reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase the Bonds pursuant to any Terms Agreement are
subject to the accuracy in all material respects of the representations and
warranties of the Company and Capstead herein contained, to the performance by
the Company and Capstead of their obligations hereunder, and to the following
further conditions:
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(a) At the applicable Closing Time (i) no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, (ii) the rating assigned as of the date of
the applicable Terms Agreement by any nationally recognized securities
rating agency to the Bonds to be underwritten at such time pursuant to
this Agreement shall not have been lowered since that date and (iii)
there shall not have come to your attention any fact that would cause
you to believe that the Final Prospectus at the time it was required to
be delivered to a purchaser of the Bonds to be underwritten at such time
pursuant to this Agreement contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at such time,
not misleading.
(b) At the applicable Closing Time you shall have received:
(1) An opinion, addressed to the Underwriters and dated the Closing
Time, of Xxxxxxx & Xxxxx L.L.P., counsel to the Company, in form and substance
reasonably satisfactory to you and counsel for the Underwriters, 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.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and conduct its business as
described in the applicable Final Prospectus; and the Company is
qualified as a foreign corporation to transact business in the
State of Texas and each other jurisdiction where the nature of
its assets requires such qualification.
(iii) All the authorized, issued and outstanding capital
stock of the Company has been duly authorized and validly issued
and is fully paid and non-assessable, and is owned of record by
Capstead, to the knowledge of such counsel, free and clear of any
lien, security interest, encumbrance, option, warrant, voting
trust or similar arrangement.
(iv) The Company is not in violation of its charter or
bylaws. To the best of such counsel's knowledge, the Company is
not in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it
or its properties may be bound.
(v) To the best of such counsel's knowledge, the Company
owns or possesses or has obtained all material governmental
licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and
to operate, its properties and to carry on its businesses as
presently
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conducted; and, to the best of such counsel's knowledge, the
Company has conducted and is conducting its businesses so as to
comply in all material respects with all applicable laws.
(vi) 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 best of such counsel's knowledge,
threatened against the Company which could reasonably be expected
to interfere with or adversely affect the consummation of the
transactions contemplated herein.
(vii) The execution and delivery of this Agreement, the
applicable Terms Agreement and the Indenture (including the
applicable Series Supplement), the incurrence of the obligations
herein and therein set forth and the consummation of the
transactions contemplated herein and therein have been duly
authorized by the Company, by all necessary action; this
Agreement and the applicable Terms Agreement have been duly
authorized, executed and delivered by the Company; and the
Indenture (including the applicable Series Supplement) has been
duly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the
Company, enforceable in accordance with its terms, subject, as to
enforceability of remedies, to applicable bankruptcy, insolvency,
reorganization or other laws affecting creditors' rights
generally and to general principles of equity and equitable
remedies (regardless of whether the enforceability of such
remedies is considered in a proceeding at law or in equity).
(viii) Neither the execution and delivery of this
Agreement, the applicable Terms Agreement or the Indenture, the
incurrence of the obligations herein or therein set forth, nor
the consummation of the transactions contemplated herein or
therein, to the best of such counsel's knowledge, will conflict
with or constitute a breach of, or default under, or result in
the creation or imposition of any Lien 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 may be
bound, or to which any of its assets is subject (other than the
Lien created by the Indenture) which separately or in the
aggregate are material, nor will any such action result in any
violation of the provisions of the charter or bylaws of the
Company or, to the best of such counsel's knowledge, of any law,
administrative regulation or administrative or court decree.
(ix) No filing or, registration with, notice to or
consent, approval, authorization or order or other action of, any
court or governmental authority or agency, is required for the
consummation by the Company of the transactions contemplated by
this Agreement or the applicable Terms Agreement, except such as
have been obtained and except such as may be required under state
securities or Blue
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Sky laws in connection with the distribution of the Bonds
referred to in such Terms Agreement by the Underwriters.
(x) The issuance of the Bonds to be underwritten at such
time pursuant to this Agreement has been duly authorized by the
Company and such Bonds have been duly executed and delivered by
the Company and, assuming due authorization, execution and
delivery of the Indenture by the Indenture Trustee, when
authenticated by the Indenture Trustee in accordance with the
terms of the Indenture and delivered to and paid for by the
Underwriters pursuant to the applicable Terms Agreement, will
constitute legal, valid and binding non-recourse obligations of
the Company, enforceable in accordance with their terms, subject,
as to enforceability of remedies, to applicable bankruptcy,
insolvency, reorganization or other laws affecting creditors'
rights generally and to general principles of equity and
equitable remedies (regardless of whether the enforceability of
such remedies is considered in a proceeding at law or in equity),
and the Bonds are entitled to the benefits and security provided
by the Indenture.
(xi) The Bonds to be underwritten at such time pursuant
to this Agreement and the Indenture conform in all material
respects to the respective descriptions thereof contained in the
applicable Final Prospectus (excluding any descriptions thereof
in the Current Report, as to which no opinion need be rendered).
(xii) At the Closing Time, the Company had corporate
power and authority to assign, pledge and deliver the Initial
Collateral to the Indenture Trustee under the Indenture, and had
duly authorized such assignment, pledge and delivery to the
Indenture Trustee by all necessary corporate action.
(xiii) Immediately prior to the grant to the Indenture
Trustee of the Conventional Certificates securing the Bonds to be
underwritten at such time pursuant to this Agreement, the Company
owned such Conventional Certificates, free and clear of any Lien,
except the lien of the Indenture; each such Conventional
Certificate has been duly and validly assigned, pledged and
delivered by the Company to the Indenture Trustee or its nominee
under the Indenture; the Indenture, together with such
assignment, pledge and delivery of each such Conventional
Certificate, the filing of a UCC-1 financing statement with
respect to the Conventional Certificates with the office of the
Secretary of State of the State of Texas and in such other
jurisdictions, if any, as such counsel deems appropriate, and the
possession by the Indenture Trustee, or its nominee, of the
Conventional Certificates not represented by book-entry accounts
and of the other assets comprising the Initial Collateral, create
as security for such Bonds a valid and perfected security
interest in the Trust Estate as security for the repayment of
such Bonds free and clear of any prior Lien; a UCC-1 financing
statement with respect to the security interest created by the
Indenture has been filed in the office of the
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Secretary of State of the State of Texas and in such other
offices, if any, as such counsel deems appropriate; no other
recordings or filings in any jurisdiction are necessary to
perfect the security interest of the Indenture Trustee in the
Initial Collateral as against any third party, and no further
action is required to create, attach or perfect such security
interest except that:
(A) appropriate continuation statements with respect to the
UCC-1 financing statements referred to above must be filed
within six months prior to the expiration of each
consecutive five-year period commencing upon the date of
initial filing, and
(B) with respect to items of Initial Collateral and the
distributions thereof, a perfected security interest in
which is perfected by delivery of possession, possession
of such items must be maintained by the Indenture Trustee
or its bailee (other than an affiliate of the Company).
(xiv) The Registration Statement is effective under the
1933 Act, and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or threatened by the Commission.
The Indenture has been duly qualified under the 1939 Act.
(xv) The Registration Statement and the applicable Final
Prospectus, and each amendment or supplement thereto (other than
the financial statements, schedules, notes thereto, and the
financial and statistical data included therein and any documents
incorporated by reference in the Registration Statement and the
applicable Final Prospectus, including without limitation the
Current Report, in each case as to which no opinion need be
rendered), as of their respective effective or issue dates,
complied as to form in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1939
Act and the 1939 Act Regulations; and each document, if any,
filed pursuant to the 1934 Act (other than the financial
statements, schedules, notes thereto, and the financial and
statistical data included therein and any documents incorporated
by reference in the Registration Statement and the applicable
Final Prospectus, including without limitation the Current
Report, in each case as to which no opinion need be rendered) and
incorporated by reference in the applicable Final Prospectus,
complied when so filed as to form in all material respects with
the 1934 Act and the rules and regulations thereunder.
(xvi) The statements in the applicable Final Prospectus
under the caption "Certain Federal Income Tax Consequences", to
the extent they constitute matters of law or legal conclusions,
have been prepared or reviewed by such counsel and correctly
represent the opinion of such counsel; the descriptions in such
Final
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Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown.
(xvii) To the best of such counsel's knowledge, there are
no legal or governmental proceedings pending or threatened which
are required to be disclosed therein, nor any contracts or
documents of a character required to be described or referred to
in the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed as
exhibits thereto (other than financial statements, schedules, and
notes thereto and the financial and statistical data included
therein and the other documents, if any, incorporated by
reference therein, as to which no opinion need be rendered).
(xviii) The Company is not, and will not as a result of
the offer and sale of the Bonds as contemplated in this Agreement
and any applicable Terms Agreement, become an "investment
company" or under the "control" of an "investment company" as
such terms are defined in the Investment Company Act which would
be required to register under the Investment Company Act.
(xix) Nothing has come to the attention of such counsel
that would lead them to believe that the Registration Statement
or any amendment thereto (other than the financial statements,
schedules, notes thereto and the financial and statistical data
included therein and any documents incorporated by reference
therein including without limitation the Current Report related
thereto, in each case as to which no opinion need be rendered),
at their respective effective dates, 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 Final Prospectus or any
amendment or supplement thereto (other than the Current Report
related thereto, in each case as to which no opinion need be
rendered), at their respective issue dates or, as amended or
supplemented (except as aforesaid), at Closing Time, contained an
untrue statement of a material fact or omitted 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.
(xx) The Bonds to be underwritten at such time pursuant
to this Agreement, or the Classes thereof as are identified in
such opinion for these purposes, will be "mortgage related
securities", as defined in Section 3(a)(41) of the 1934 Act, so
long as such Bonds or the identified Classes are rated in one of
the two highest rating categories by at least one nationally
recognized statistical rating organization.
(2) The opinion, addressed to the Underwriters and dated the Closing
Time, of counsel to Capstead in form and substance reasonably satisfactory to
you and counsel for the Underwriters, to the effect that:
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(i) Capstead has been duly organized and is validly
existing as a corporation, in good standing under the laws of the
jurisdiction of its organization with corporate power and
authority to own, lease and operate its properties and conduct
its business as described in the applicable Final Prospectus.
(ii) Capstead is not, nor will it be, as a result of its
entering into this Agreement and consummating the transactions
contemplated hereby, in violation of its charter or bylaws, and
to the best of such counsel's knowledge, is not in default in the
performance or observance of any obligation, agreement, covenant
or condition contained in any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or its properties may be
bound.
(iii) 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 best of such counsel's knowledge, against
Capstead which could reasonably be expected to interfere with or
adversely affect the consummation of the transactions
contemplated herein.
(iv) The execution and delivery of this Agreement and the
applicable Terms Agreement, the incurrence of the obligations
herein and therein set forth and the consummation of the
transactions contemplated herein and therein have been duly
authorized by Capstead by all necessary corporate action; and
this Agreement and the applicable Terms Agreement have been duly
authorized, executed and delivered by Capstead.
(v) No filing or registration with, notice to or consent,
approval, authorization or order or other action of, any court or
governmental authority or agency, is required for the
consummation by Capstead of the transactions contemplated by this
Agreement or the applicable Terms Agreement, except such as have
been obtained and except such as may be required under state
securities or Blue Sky laws in connection with the distribution
of the Bonds to be underwritten at such time pursuant to this
Agreement by the Underwriters.
(c) At the Closing Time you shall have received the opinion of
Xxxxxxx & Xxxxx L.L.P., addressed to the Underwriters and dated the
Closing Time, with respect to certain tax matters, in substantially the
same form as their opinion filed as Exhibit 8.1 of the Registration
Statement.
(d) At the Closing Time you shall have received the favorable
opinion, dated the Closing Time, of Xxxxx & Wood LLP, counsel for the
Underwriters, with respect to the matters set forth in clauses (i),
(vii), (x), (xi), (xiv), (xv), (xix) and (xx) of paragraph (b)(1) of
this Section 5 and in clause (iv) of paragraph (b)(2) of this Section 5.
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(e) At the Closing Time there shall not have been, since the
date of the applicable Terms Agreement or since the respective dates as
of which information is given in the Registration Statement, any
material adverse change in the condition, financial or otherwise,
earnings, business affairs, regulatory situation or business prospects
of the Company or Capstead, whether or not arising in the ordinary
course of business, and you shall have received, at the Closing Time, a
certificate of the Chairman of the Board, the President, any Senior
Executive Vice President, Executive Vice President, Senior Vice
President, Vice President or Authorized Officer of the Company and of
Capstead to the effect that there has been no such material adverse
change and to the effect that the other representations and warranties
of the Company and Capstead contained in Section 1 are true and correct
with the same force and effect as though made at and as of the Closing
Time.
(f) The Company and you shall have received from Deloitte &
Touche (the "Independent Accountants") an agreed upon procedures letter,
dated as of the date of the applicable Terms Agreement and delivered
simultaneously with the printing of the Final Prospectus, in form and
substance satisfactory to you. In addition, the Company and you shall
have received from the Independent Accountants an agreed upon procedures
letter, in form and substance satisfactory to you, with respect to the
Section 8 Materials.
(g) [Reserved]
(h) At the Closing Time, you and the Company shall have
received the favorable opinion of counsel for the Indenture Trustee,
addressed to the Underwriters and the Company and dated the Closing
Time, in form and substance satisfactory to you and counsel for the
Underwriters and the Company, to the effect that:
(i) The Indenture Trustee is duly incorporated, validly
existing and in good standing as a national banking association
under the laws of the United States of America, with full
corporate and trust power and authority to conduct its business
and affairs as a Indenture Trustee;
(ii) The Indenture Trustee has full power and authority
to execute and deliver the Indenture and to perform its
obligations thereunder;
(iii) The Indenture Trustee has duly accepted the office
of Indenture Trustee under the Indenture; and
(iv) The Indenture Trustee has duly authorized, executed
and delivered the Indenture.
(i) At the Closing Time, the Bonds then to be underwritten
pursuant to this Agreement shall be rated in the highest rating category
by the rating agencies requested to rate such Bonds or such other rating
category as the related Terms Agreement shall state.
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(j) At the Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions (including copies
of insurance policies described in the applicable Final Prospectus and
opinions of counsel with respect to such policies) as they may
reasonably require for the purpose of enabling them to pass upon the
Registration Statement, the applicable Final Prospectus, the issuance
and sale of the Bonds then to be underwritten pursuant to this Agreement
as contemplated in the applicable Terms Agreement and related
proceedings, or in order to evidence the accuracy of any of the
representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
and Capstead in connection with the issuance and sale of the Bonds then
to be underwritten pursuant to this Agreement as contemplated in the
applicable Terms Agreement and in the Indenture shall be reasonably
satisfactory in form and substance to you and counsel for the
Underwriters.
If any condition in this Section shall not have been fulfilled when and
as required to be fulfilled, this Agreement and the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to
the Closing Time, and such termination shall be without liability of any party
to any other party except as provided in Section 4.
SECTION 6. Indemnification. (a) The Company and Capstead, jointly and
severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any 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), 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 any preliminary prospectus, preliminary prospectus
supplement or the Final 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; provided, however, that (A) the Company
shall not be liable in any such case if such untrue statement or
omission or such alleged untrue statement or omission was made
(1) in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through you expressly
for use in the Registration Statement (or any amendment thereto)
or in any preliminary prospectus, preliminary prospectus
supplement or each Final Prospectus (or any amendment or
supplement thereto) or (2) in any Current Report or any amendment
or supplement thereof, except to the extent that any untrue
statement or alleged untrue statement therein results (or is
alleged to have resulted) directly from an error (a "Mortgage
Collateral Error") in the information concerning the
characteristics of the Mortgage Loans furnished by the Company to
you in writing or by electronic transmission that was used in the
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preparation of either (x) any Section 8 Materials (or amendments
or supplements thereof) included in such Current Report (or
amendment or supplement thereof) or (y) any written or electronic
materials furnished to prospective investors on which the Section
8 Materials (or amendments or supplements thereof) were based;
(B) such indemnity with respect to any Corrected Statement (as
defined below) in such Final Prospectus (or supplement thereto)
shall not inure to the benefit of any Underwriter (or any person
controlling any Underwriter) from whom the person asserting any
loss, claim, damage or liability purchased the Bonds that are the
subject thereof if such person did not receive a copy of a
supplement to such Final Prospectus at or prior to the
confirmation of the sale of such Bonds and the untrue statement
or admission of a material fact contained in such Final
Prospectus (or supplement thereto) was corrected (a "Corrected
Statement") in such other supplement and such supplement was
furnished by the Company to you prior to the delivery of such
confirmation; and (C) such indemnity with respect to any Mortgage
Collateral Error shall not inure to the benefit of any
Underwriter (or any person controlling the Underwriter) from whom
the person asserting any loss, claim, damage or liability
received any Section 8 Materials (or any written or electronic
materials on which the Section 8 Materials are based) that were
prepared on the basis of such Mortgage Collateral Error, if,
prior to the time of confirmation of the sale of the applicable
Bonds to such person, the Company notified you in writing of the
Mortgage Collateral Error or provided in written or electronic
form information superseding or correcting such Mortgage
Collateral Error (in any such case a "Corrected Mortgage
Collateral Error"), and such Underwriter failed to notify such
person thereof or to deliver to such person corrected Section 8
Materials (or underlying written or electronic materials relating
thereto);
(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,
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based, in
each case, 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;
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel
chosen by you) reasonably incurred in investigating, preparing or
defending against any litigation, or 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 paragraphs (i)
or (ii) above;
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, Capstead
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and each person, if any, who controls the Company or Capstead within the
meaning of Section 15 of the 1933 Act and the officers and directors of
any such person against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this
Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus,
preliminary prospectus supplement or the Final Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
(i) written information furnished to the Company by such Underwriter
expressly for use in the Registration Statement (or any amendment
thereto) or in any preliminary prospectus, preliminary prospectus
supplement or each Final Prospectus (or any amendment or supplement
thereto) or (ii) any Section 8 Materials (or amendments or supplements
thereof) furnished to the Company by such Underwriter pursuant to
Section 8 hereof and incorporated by reference in such Registration
Statement or the related Final Prospectus or any amendment or supplement
thereto (except that no such indemnity shall be available for any
losses, claims, damages or liabilities, or actions in respect thereof,
resulting from any Mortgage Collateral Error, other than a Corrected
Mortgage Collateral Error).
(c) Promptly after receipt by an indemnified party under
Section 6 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 6, notify such indemnifying party
in writing of the commencement thereof; but the omission so to notify
such indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 6.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party or parties of the commencement thereof,
the indemnifying party or parties will be entitled to participate
therein, and to the extent that they may elect by written notice
delivered to an indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with
counsel satisfactory to such indemnified party; provided, however, that
if the defendants in any such action include both an indemnified party
and an indemnifying party and such indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or addition to
those available to any indemnifying party, such 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 an indemnifying party or parties to such indemnified party
of their election so to assume the defense of such action and approval
by such indemnified party or counsel, such indemnifying party or parties
will not be liable to such indemnified party under this Section 6 for
any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (i) such indemnified
party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying
party or parties shall not be liable for the expenses of more than one
separate counsel approved by the indemnified party or parties in the
case of subparagraph (a) or (b) above, representing the indemnified
parties under subparagraph
-23-
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(a) or (b) above, who are parties to such action), (ii) the indemnifying
party or parties shall not have employed counsel satisfactory to the
indemnified party or parties to represent such indemnified party or
parties within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party or parties have authorized the
employment of counsel for an indemnified party at the expense of the
indemnifying parties; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) The indemnity agreement provided by this Section 6 shall
be in addition to any liability the Company and the Underwriters shall
otherwise have.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unavailable to or insufficient to hold
harmless the indemnified parties although applicable in accordance with its
terms, the Company and Capstead, on the one hand, and the Underwriters on the
other, shall:
(a) in the case of any losses, claims, damages and liabilities
(or actions in respect thereof) relating to a class or classes of any
Series of Bonds (a "Class" or "Classes," as the case may be) which do
not arise out of or are not based upon any untrue statement or omission
of a material fact in any Section 8 Materials (or any amendments or
supplements thereof), contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred in respect of any Class or Classes
underwritten pursuant to this Agreement by the Company or Capstead and
the Underwriter of such Class or Classes, as incurred, in such
proportions that the Underwriter of such Class or Classes is responsible
for that portion represented by the percentage that the difference
between the proceeds to the Company appearing on the cover page of the
applicable Final Prospectus and the total of all proceeds received by
such Underwriter from the sale of all Bonds underwritten by it (the
"Underwriting Discount") bears to the total proceeds received by such
Underwriter from such Bonds, and the Company and Capstead are
responsible for the balance;
(b) in the case of any losses, claims, damages and liabilities
(or actions in respect thereof) which arise out of or are based upon any
untrue statement or omission of a material fact in any Section 8
Materials (or any amendments or supplements thereof), contribute to the
aggregate losses, liabilities, claims, damages and expenses of the
nature contemplated by said indemnity agreement incurred in respect of
any Class or Classes underwritten pursuant to this Agreement by the
Company or Capstead, and the Underwriter of such Class or Classes, as
incurred, in such proportion as is appropriate to reflect the relative
fault of the Company and Capstead on the one hand and such Underwriter
on the other hand in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages and expenses (or
actions in respect thereof) as well as any other relevant equitable
-24-
25
considerations; provided that in no event shall such Underwriter be
responsible for an amount greater than the excess, if any, of (i) the
total proceeds received by such Underwriter in the sale of all Bonds
underwritten by it (taking into account any gains or losses realized by
such Underwriter in any hedging transactions directly related to the
Bonds) over (ii) the proceeds received by the Company in respect of the
Bonds purchased by such Underwriter.
provided, however, that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. 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 and Capstead who signed the
Registration Statement, and each person, if any, who controls the Company or
Capstead within the meaning of Section 15 of the 1933 Act and the officers and
directors of any such person shall have the same rights to contribution as the
Company or Capstead.
SECTION 8. Computational Materials and Structural Term Sheets. (a) As
soon as practicable and in no event later than 3:00 p.m. Dallas, Texas time one
Business Day before the date on which the Final Prospectus relating to the
Bonds of a Series is required to be filed by the Company with the Commission
pursuant to Rule 424 under the 1933 Act, you shall deliver to the Company five
complete copies of all materials provided by you to prospective investors
regarding the Class or Classes being underwritten by you which constitute (i)
"Computational Materials" within the meaning of the no-action letter dated May
20, 1994 issued by the Division of Corporation Finance of the Commission to
Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated,
and Xxxxxx Structured Asset Corporation and the no-action letter dated May 27,
1994 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Xxxxxx Letters") and the filing
of such material is a condition of the relief granted in such letter (such
materials being the "Computational Materials"), and (ii) "Structural Term
Sheets" within the meaning of the no-action letter dated February 17, 1995
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter") and the filing of such material is a
condition of the relief granted in such letter (such materials being the
"Structural Term Sheets"). Each delivery of Computational Materials or
Structural Terms Sheets to the Company pursuant to this paragraph (a) shall be
effected by delivering four copies of such materials to counsel for the Company
at Xxxxxxx & Xxxxx L.L.P., 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
or such other address specified by such counsel to you in writing, and one copy
of such materials to the Company.
(b) You represent and warrant to and agree with the Company,
as of the date of the related Terms Agreement and as of the Closing
Date, that:
(i) the Computational Materials furnished to the
Company pursuant to Section 8(a) constitute (either in original,
aggregated or consolidated form) all of the materials furnished
to prospective investors by the Underwriters prior to the time of
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delivery thereof to the Company that are required to be filed
with the Commission with respect to the related Bonds in
accordance with the Xxxxxx Letters, and such Computational
Materials comply with the requirements of the Xxxxxx Letters;
(ii) the Structural Term Sheets furnished to the Company
by such Underwriter pursuant to Section 8(a) constitute all of
the materials furnished to prospective investors by such
Underwriter prior to the time of delivery thereof to the Company
that are required to be filed with the Commission as "Structural
Term Sheets" with respect to the related Offered Securities in
accordance with the PSA Letter, and such Structural Term Sheets
comply with the requirements of the PSA Letter; and
(iii) on the date any such Computational Materials or
Structural Term Sheets with respect to such Bonds (or any written
or electronic materials furnished to prospective investors on
which the Computational Materials or Structural Term Sheets are
based) were last furnished to each prospective investor and on
the date of delivery thereof to the Company pursuant to Section
8(a) and on the related Closing Date, such Computational
Materials or Structural Term Sheets (or any such written or
electronic materials furnished to prospective investors on which
the Computational Materials or Structural Term Sheets are based)
did not and will not include any untrue statement of a material
fact or, when read in conjunction with the Final Prospectus and
Prospectus Supplement, omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
Notwithstanding the foregoing, you make no representation or warranty as to
whether any Computational Materials or Structural Term Sheets (or any written
or electronic materials on which the Computational Materials or Structural Term
Sheets are based) included or will include any untrue statement resulting
directly from any Mortgage Collateral Error (except any Corrected Mortgage
Collateral Error, with respect to materials prepared after the receipt by you
from the Company of notice of such Corrected Mortgage Collateral Error or
materials superseding or correcting such Corrected Mortgage Collateral Error).
(c) You acknowledge and agree that the Company has not authorized and
will not authorize the distribution of any Computational Materials or
Structural Term Sheets to any prospective investor, and agree that any
Computational Materials or Structural Term Sheets with respect to any Series of
Bonds furnished to prospective investors from and after the date hereof shall
include a disclaimer in form reasonably satisfactory to the Company. You agree
that you will not represent to investors that any Computational Materials or
Structural Term Sheets were prepared or disseminated on behalf of the Company.
This disclaimer shall not alter the rights or obligations of the parties hereto
pursuant to Sections 6 and 7 hereof.
(d) If, at any time when a prospectus relating to the Bonds of a
Series is required to be delivered under the 1933 Act, it shall be necessary to
amend or supplement the related Final
-26-
27
Prospectus as a result of an untrue statement of a material fact contained in
any Computational Materials or Structural Term Sheets provided by you pursuant
to this Section 8 or the omission to state therein a material fact required,
when considered in conjunction with the Final Prospectus and Prospectus
Supplement, to be stated therein or necessary to make the statements therein,
when read in conjunction with the Final Prospectus and Prospectus Supplement,
not misleading, or if it shall be necessary to amend or supplement any Current
Report relating to any Computational Materials or Structural Term Sheets to
comply with the 1933 Act or the rules thereunder, you promptly will prepare and
furnish to the Company for filing with the Commission an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance. You represent and warrant to the Company, as of
the date of delivery of such amendment or supplement to the Company, that such
amendment or supplement will not include any untrue statement of a material
fact or, when read in conjunction with the Final Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Company shall
have no obligation to file such amendment or supplement if the Company
determines that (i) such amendment or supplement contains any untrue statement
of a material fact or, when read in conjunction with the Final Prospectus and
Prospectus Supplement, omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (it being
understood, however, that the Company shall have no obligation to review or
pass upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by the Underwriter to the Company pursuant to this
paragraph (d)) or (ii) such filing is not required under the Act; provided
that, in the event the Company makes such a determination, it shall immediately
notify you in writing of the reasons for such determination; and, provided,
further, that it shall file such amendment or supplement if you specifically
confirm in writing to the Company that (A) such amendment or supplement does
not contain any untrue statement of a material fact or, when read in
conjunction with the Final Prospectus and Prospectus Supplement, omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading and (B) you are advising the Company to file
such amendment or supplement.
(e) You will cooperate with, and provide any information necessary to
the Independent Accountants so that they may complete and deliver their agreed-
upon procedures letter described in Section 5(f) hereof in a timely manner so
that such letter may be delivered to the Company by not later than 5:00 p.m.
New York time, on the Business Day before the date on which the Current Report
described in Section 3(b) is required to be filed with the Commission.
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 or Capstead
submitted pursuant hereto or as contemplated hereby, shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of the Company or Capstead or a controlling person thereof, and shall survive
delivery of any Bonds to the Underwriters.
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28
SECTION 10. Termination of Agreement. (a) This Agreement may be
terminated for any reason at any time by either the Company or you upon the
giving of thirty days' written notice of such termination to the other party
hereto; provided, however, that if a Terms Agreement has been entered into but
the applicable Closing Time has not occurred, this Agreement shall not be
terminated pursuant to this Section 10(a) prior to such Closing Time.
(b) You may terminate this Agreement or such Terms Agreement, by notice
to the Company, at any time at or prior to the Closing Time, (i) if there has
been, since the respective dates as of which information is given in the
Registration Statement or the applicable Final Prospectus, any material adverse
change in the condition, financial or otherwise, earnings, business affairs,
regulatory situation or business prospects of the Company or Capstead, whether
or not arising in the ordinary course of business, (ii) if there shall have
occurred any material adverse change in the financial markets of the United
States or any outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of which is such as to make it, in
your judgment, impracticable to market the Bonds or enforce contracts for the
sale of the Bonds, or (iii) if trading in any securities of the Company has
been suspended by the Commission or a national securities exchange, or if
trading generally on either the American Stock Exchange or the New York Stock
Exchange shall have 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 shall have been
declared by either Federal or New York authorities, or (iv) if the rating
assigned by any nationally recognized securities rating agency requested to
rate any specific debt securities of the Company as of the date of any
applicable Terms Agreement shall have been lowered since that date or if any
such rating agency shall have publicly announced that it has under surveillance
or review, with possible negative implications, its requested rating of such
debt securities of the Company, or (v) if there shall have come to your
attention any facts that would cause you to believe that the applicable Final
Prospectus, at the time it was required to be delivered to a purchaser of the
Bonds offered thereby, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at the time of such delivery,
not misleading.
(c) In the event of any such termination, (i) the covenants set forth
in Section 3 with respect to any offering of Bonds shall remain in effect so
long as any Underwriter owns any such Bonds purchased from the Company pursuant
to the applicable Terms Agreement and (ii) the provisions of Section 4, the
indemnity agreement set forth in Section 6, the contribution provisions set
forth in Section 7, and the provisions of Sections 8, 9 and 14 shall remain in
effect.
SECTION 11. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Bonds which
it or they are obligated to purchase hereunder and under the applicable Terms
Agreement (the "Defaulted Bonds"), you shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Bonds in such amounts as may be agreed upon and upon the
terms herein set forth and
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under the applicable Terms Agreement. If, however, you have not completed such
arrangements within such 24-hour period, then:
(a) if the aggregate original principal amount of Defaulted
Bonds does not exceed 10% of the aggregate original principal amount of
the Bonds to be purchased pursuant to such Terms Agreement, the
non-defaulting Underwriters named in such Terms Agreement shall be
obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations thereunder bear to the
underwriting obligations of all non-defaulting Underwriters; and
(b) if the aggregate original principal amount of Defaulted
Bonds exceeds 10% of the aggregate original principal amount of the
Bonds to be purchased pursuant to such Terms Agreement, the applicable
Terms Agreement shall terminate without any liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 11 and nothing in this
Agreement shall relieve any defaulting Underwriter from liability in respect of
its default.
In the event of any such default which does not result in a termination
of this Agreement or such applicable Terms Agreement, either you or the Company
shall have the right to postpone the Closing Time for a period of time not
exceeding seven days in order to effect any required changes in the
Registration Statement or in any other documents or arrangements.
SECTION 12. Notices. 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 written telecommunication. Notices to the
Company shall be directed to its agent for service set forth on the cover page
of the Registration Statement, notices to the Company shall be directed to it
at CityPlace Center East, 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000, Attention: Xxxx X. Xxxxx and notices to you shall be directed to you
c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxxxxxx, Esq., or in respect of any Terms Agreement, to
such other person and place agreed upon by those of you who are parties to such
Terms Agreements.
SECTION 13. Parties. This Agreement shall inure to the benefit of and
be binding upon you, the Company and Capstead, and any Terms Agreement shall
inure to the benefit of and be binding upon the Company and Capstead and any
Underwriter who becomes a party to such Terms Agreement, and their respective
successors. Nothing expressed or mentioned in this Agreement or any Terms
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any Terms Agreement or
any provision herein or therein contained. This Agreement and any Terms
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties
-29-
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hereto and thereto 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
Bonds from any Underwriter shall be deemed to be a successor by reason merely
of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT AND EACH TERMS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
[Remainder of Page Intentionally Left Blank]
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31
If the foregoing is in accordance with your understanding hereof, the
form of acceptance set forth below should be signed by you, whereupon this
instrument along with all counterparts will become a binding agreement among
the Company, Capstead, and us in accordance with its terms.
Very truly yours,
CMC SECURITIES CORPORATION III
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President - Asset
and Liability Management
CAPSTEAD MORTGAGE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President - Asset
and Liability Management
ACCEPTED at New York, New York as
of the date first above written.
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxxxx Xxxxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
---------------------------
Title: Senior Managing Director
--------------------------
Underwriting Agreement - Signature Page
32
EXHIBIT A
CMC SECURITIES CORPORATION III
(a Delaware corporation)
Collateralized Mortgage Obligations, Series 199_-__
Terms Agreement
Dated: ___________________
CMC Securities Corporation III
CityPlace Center East
0000 X. Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Re: Underwriting Agreement dated ________ __, 199_
Title of Bonds:
Section 1. The Bonds: The Series 199_-__ Bonds (the "Series 199_-__ Bonds")
shall be as follows:
(a) Principal amount to be issued: $_____________
(b) Public offering price:
(c) Purchase price:
[plus accrued interest from _______________.]
(d) Payment Dates:
(e) Accrual Periods:
(f) Bond Rating: It is a condition to the issuance of the Series 199_-
__ Bonds that they be rated "___" by _______________.
33
Section 2. Closing; Stand-Off Period:
(a) Closing date and location:
(b) Type of funds to be delivered by the Underwriters at the Closing:
(c) Expiration date of Stand-Off Period:
(d) Securities excluded from Stand-Off Period restrictions:
Section 3. Co-managers:
Section 4. Purchase by the Underwriter(s):
The Underwriter(s) agrees, subject to the terms and provisions herein
and of the above-referenced Underwriting Agreement (as modified and amended by
the terms hereof), which is incorporated herein in its entirety and made a part
hereof, to purchase [the entire aggregate principal amount of the Series 199_-
__ Bonds in the Classes set forth in Section 1 hereof].
[Name of Underwriter]
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
[Name of Underwriter]
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
34
Accepted:
CMC SECURITIES CORPORATION III
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
Accepted:
CAPSTEAD MORTGAGE CORPORATION
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
