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EXHIBIT 1.1
UNDERWRITING AGREEMENT
MAIN PLACE FUNDING, LLC
UNDERWRITING AGREEMENT
May 19, 1999
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Main Place Funding, LLC, a Delaware limited liability company (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its securities identified in
Schedule I hereto (the "Bonds"), to be issued under an indenture (the
"Indenture") dated as of May 25, 1999 between the Company and U.S. Bank Trust
National Association as trustee (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives", as used herein, each shall
be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act"), and has
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (the file number of which is set
forth in Schedule I hereto), which has become effective, for the
registration under the Act of the Bonds. Such registration statement,
as amended to the date of this Agreement, meets the requirements set
forth in Rule 415(a)(1) under the Act and complies in all other
material respects with said Rule. The Company proposes to file with the
Commission pursuant to Rule 424 under the Act a supplement to the form
of prospectus included in such registration statement relating to the
Bonds and the plan of distribution thereof and has previously advised
the Representatives of all further information (financial and other)
with respect to the Company to be set forth therein. Such registration
statement, including the exhibits thereto, as amended to the date of
this Agreement, is hereinafter called the "Registration Statement";
such prospectus in the form in which it appears in the Registration
Statement is hereinafter called the "Basic Prospectus"; and such
supplemented form of prospectus, in the form in which it shall be
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filed with the Commission pursuant to Rule 424 (including the Basic
Prospectus as so supplemented) is hereinafter called the "Final
Prospectus." Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 hereinafter is called the
"Preliminary Final Prospectus." Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is
first filed pursuant to Rule 424 under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when
any supplement to the Final Prospectus is filed with the Commission and
at the Closing Date (as hereinafter defined), (i) the Registration
Statement, as amended as of any such time, and the Final Prospectus, as
amended or supplemented as of any such time, and the Indenture will
comply in all material respects with the applicable requirements of the
Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the Exchange Act and the respective rules thereunder, (ii)
the Registration Statement, as amended as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the Company
makes no representations or warranties as to (A) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the Trust
Indenture Act of the Trustee, (B) the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives specifically
for use in connection with the preparation of the Registration
Statement and the Final Prospectus or (C) the Current Report (as
defined in Section 5(b) below), or in any amendment thereof or
supplement thereto, incorporated by reference in the Registration
Statement or the Final Prospectus (or any amendment thereof or
supplement thereto).
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(c) The Company has been duly organized and is validly
existing as a limited liability company under the laws of the State of
Delaware and has power and authority to own its properties and conduct
its business, as now conducted by it, and to enter into and perform its
obligations under this Agreement and the Indenture.
(d) The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or
the Basic Prospectus or for any additional information or (ii) the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement.
(e) This Agreement has been duly authorized, executed and
delivered by the Company, and the Indenture, when delivered by the
Company, will have been duly authorized, executed and delivered by the
Company, and will constitute a legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms, subject, as to the enforcement of remedies, to applicable
bankruptcy, insolvency, reorganization, moratorium, receivership and
similar laws affecting creditors' rights generally and to general
principles of equity (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of the Bonds set forth opposite such
Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Bonds
shall be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Bonds being herein called the "Closing
Date"). Delivery of the Bonds shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof in the
manner set forth in Schedule I hereto. If Schedule I indicates that the Bonds
are to be issued in book-entry form, delivery of the Bonds shall be made through
the facilities of the depository or depositories set forth on Schedule I.
Alternatively, certificates for the Bonds shall be registered in such names and
in such denominations as the Representatives may request not less than three
full business days in advance of the Closing Date.
The Company agrees to have the Bonds available for inspection,
checking and packaging by the Representatives in Charlotte, North Carolina, not
later than 1:00 p.m., Charlotte time, on the business day prior to the Closing
Date.
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4. Representations and Warranties of the Underwriters. Each
Underwriter represents and agrees that (i) it has not offered or sold and will
not offer or sell any Bonds to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995 or the Financial Services Xxx 0000
(the "Services Act") and (ii) it has only issued or passed on, and will only
issue or pass on, in the United Kingdom any document received by it in
connection with the issue of the Bonds, other than any document which consists
of or any part of listing particulars, supplementary listing particulars or any
other document required or permitted to be published by listing rules under Part
IV of the Services Act, to a person who is of a kind described in Article 11(3)
of the Financial Services Xxx 0000 (Investment Advertisements) (Exemptions)
Order 1995 or is a person to whom the document may otherwise lawfully be issued
or passed on. Each Underwriters further represents and agrees that each
purchaser will be required to agree that it will not offer or sell any Bonds,
directly or indirectly, in Japan or to, or for the benefit of, any resident of
Japan (which term as used herein means any person resident in Japan, including
any corporation or other entity organized under the laws of Japan) except
pursuant to an exemption from the registration requirements of, and otherwise in
compliance with, the Securities and Exchange Law of Japan and any relevant laws
or regulations of Japan.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the
Bonds, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus unless the Company has furnished the Representatives a copy
for their review prior to filing and will not file any such proposed
amendment or supplement to which the Representatives reasonably object.
Subject to the foregoing sentence, the Company will cause the Final
Prospectus to be filed via the Commission's Electronic Data Gathering
Analysis and Retrieval System pursuant to Rule 424. The Company will
advise the Representatives promptly (i) when the Final Prospectus shall
have been filed with the Commission for filing pursuant to Rule 424,
(ii) when any amendment to the Registration Statement relating to the
Bonds shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment
of or supplement to the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v)
of the 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 threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
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(b) If, at any time when a prospectus relating to the
Bonds is required to be delivered under the Act, any event occurs as a
result of which the Final Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Final Prospectus to
comply with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance and will
use its best efforts to cause any required post- effective amendment to
the Registration Statement containing such amendment to be made
effective as soon as possible.
(c) The Company will make generally available to its
security holders and to the Representatives as soon as practicable, but
not later than 60 days after the close of the period covered thereby,
an earnings statement (in form complying with the provisions of Rule
158 of the regulations under the Act) covering a twelve month period
beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule 158) of
the Registration Statement.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, executed copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto which shall become effective on or prior to the Closing Date
and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto (other than exhibits to the related Current Report)
as the Representatives may reasonably request. The Company will pay the
expenses of printing all documents relating to the initial offering,
provided that any additional expenses incurred in connection with the
requirement of delivery of a market-making prospectus will be borne by
Banc of America Securities LLC.
(e) The Company will arrange for the qualification of the
Bonds for sale under the laws of such jurisdictions as the
Representatives may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of
the Bonds and will arrange for the determination of the legality of the
Bonds for purchase by institutional investors; provided, however, that
the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to general or unlimited service of process in
any jurisdiction where it is not now so subject.
(f) The Company agrees to cooperate with the
Representatives with respect to the application for the Bonds to be
listed on the stock exchange, if any, set forth on Schedule I hereto
and to use its best efforts to obtain all necessary government
approvals and follow all governmental regulations in connection
therewith. The Company further agrees, subject to the following
sentence, to use its best efforts to maintain such listing as
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is obtained for as long as the Bonds are outstanding and to pay all
fees and supply all further documents, information and undertakings as
may be necessary or advisable to maintain such listing. However, if
listing becomes unduly burdensome or impossible, in either case in the
view of the Company, the Company will no longer be obligated to
maintain such listing. The Company agrees to consult with the
Representatives at such time as to an alternative listing for the Bonds
but shall have no obligation to list the Bonds on an alternative
exchange.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Bonds shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates delivered pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened; and the Final Prospectus shall have been filed or mailed
for filing with the Commission within the time period prescribed by the
Commission.
(b) The Company shall have furnished to the
Representatives the opinion of Hunton & Xxxxxxxx, counsel for the
Company, dated the Closing Date, to the effect of paragraphs (iii),
(iv), (vi), (vii), (ix) and (x) below, and the opinion of Xxxxxx
Xxxxxxxxxx or other special counsel to the Company, dated the Closing
Date, to the effect of paragraphs (i), (ii), (v) and (viii) below:
(i) the Company is a duly organized and validly
existing limited liability company in good standing under the
laws of the State of Delaware, has the power and authority to
own its properties and conduct its business as described in
the Final Prospectus;
(ii) the Company has no subsidiaries and is not
required to be qualified or licensed to do business as a
foreign corporation in any jurisdiction;
(iii) the Bonds conform in all material respects
to the description thereof contained in the Final Prospectus;
(iv) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under the
Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar
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laws affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the right
to specific enforcement of remedies, and further subject to 12
U.S.C. 1818(b)(6)(D) and similar bank regulatory powers and to
the application of principles of public policy) and provided
that no opinion is expressed herein with respect to
consolidation of the Company with NationsBank, N.A.
("NationsBank, N.A."), its indirect parent, in the event that
NationsBank, N.A. is placed into a conservatorship or
receivership pursuant to the Federal Deposit Insurance Act, as
amended, or the consequences flowing therefrom; and the Bonds
have been duly authorized and, when executed and authenticated
in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant to this
Agreement will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights of
creditors now or hereafter in effect, and to equitable
principles that may limit the right to specific enforcement of
remedies, and further subject to 12 U.S.C. 1818(b)(6)(D) and
similar bank regulatory powers and to the application of
principles of public policy) and provided that no opinion is
expressed with respect to consolidation of the Company with
NationsBank, N.A., its indirect parent, in the event that
NationsBank, N.A. is placed into a conservatorship or
receivership pursuant to the Federal Deposit Insurance Act, as
amended, or the consequences flowing therefrom;
(v) to the best knowledge of such counsel, there
is no pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or any
arbitrator involving the Company of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, which is not
described or filed as required;
(vi) the Registration Statement has become
effective under the Act; to the best knowledge of such counsel
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or threatened; the Registration
Statement, the Final Prospectus and each amendment thereof or
supplement thereto (other than the financial statements and
other financial and statistical information contained therein
or incorporated by reference therein, as to which such counsel
need express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder; and such
counsel has no reason to believe that the Registration
Statement or any amendment thereof at the time it became
effective contained any untrue statement of a material fact or
omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or
supplemented, contains any untrue statement of a
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material fact or omits to state a material fact necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company and constitutes a legal,
valid and binding instrument enforceable against the Company
in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar
laws affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the right
to specific enforcement of remedies, and except insofar as the
enforceability of the indemnity and contribution provisions
contained in this Agreement may be limited by federal and
state securities laws, and further subject to 12 U.S.C.
1818(b)(6)(D) and similar bank regulatory powers and to the
application of principles of public policy) and provided that
no opinion is expressed with respect to consolidation of the
Company with NationsBank, N.A., its indirect parent, in the
event that NationsBank, N.A. is placed into a conservatorship
or receivership pursuant to the Federal Deposit Insurance Act,
as amended, or the consequences flowing therefrom;
(viii) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated herein,
except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Bonds by
the Underwriters and such other approvals (specified in such
opinion) as have been obtained;
(ix) neither the issue and sale of the Bonds, nor
the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach of, or constitute a default
under the certificate of formation or limited liability
company agreement of the Company or, to the best knowledge of
such counsel, the terms of any indenture or other agreement or
instrument known to such counsel and to which the Company is a
party or bound, or any order or regulation known to such
counsel to be applicable to the Company of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company; and
(x) the statements in the Final Prospectus under
the heading "United States Federal Income Tax Consequences,"
to the extent that they constitute matters of law or legal
conclusions, have been prepared or reviewed by such counsel
and provide a fair summary of such law or conclusions.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of New York or the United States, to the extent deemed
proper and specified in such opinion, upon the opinion of
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other counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters; and (B) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company or NationsBank, N.A. and public officials.
(c) The Representative shall have received from Hunton &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Bonds,
the Indenture, the Registration Statement, the Final Prospectus, and
such other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(d) The Representatives shall have received copies,
addressed to them or on which they are entitled to rely, of opinions of
counsel furnished to the Trustee under the Indenture or to the rating
agencies rating the Bonds as set forth on Schedule I hereto addressing
(i) the pledge by the Company to the Trustee of its right, title and
interest in and to the initial collateral for the Bonds or
alternatively, an opinion with respect to such matters may be included
in the opinion provided under Section 6(b), and (ii) certain matters
relating to the Company and NationsBank, N.A. in the event of a
conservatorship or receivership of NationsBank, N.A.
(e) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the Managing
Member or President and Chief Executive Officer or an Executive Vice
President or Treasurer and the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement (excluding any Current Reports and any other documents
incorporated by reference therein), the Final Prospectus and this
Agreement and that to the best of their knowledge:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement, as amended, has been issued and
no proceedings for that purpose have been instituted or
threatened; and
(iii) since the respective dates as of which
information is given in the Final Prospectus, there has been
no material adverse change in the condition (financial or
other), earnings, business or properties of the Company,
whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in
the Final Prospectus.
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(f) (i) On the date hereof, PricewaterhouseCoopers LLP and/or
any other firm of certified independent public accountants
acceptable to the Representatives shall have furnished to the
Representatives a letter, dated the date hereof, in form and
substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published
rules and regulations thereunder, and stating in effect that
using the assumptions and methodology used by the Company, all
of which shall be described in such letter, they have
recalculated such numbers and percentages set forth in the
Final Prospectus as the Representatives may reasonably request
and as are agreed to by PricewaterhouseCoopers LLP, compared
the results of their calculations to the corresponding items
in the Final Prospectus, and found each such number and
percentage set forth in the Final Prospectus to be in
agreement with the results of such calculations. To the extent
historical financial information with respect to the Company
and/or historical financial, delinquency or related
information with respect to one or more servicers is included
in the Final Prospectus, such letter or letters shall also
relate to such information.
(ii) On the Closing Date, PricewaterhouseCoopers
LLP and/or any other firm of certified independent public
accountants acceptable to the Representatives shall have
furnished to the Representatives a letter, in form and
substance satisfactory to the Representatives and as are
agreed to by PricewaterhouseCoopers LLP, relating, to the
extent such information is not covered in the letter or
letters provided pursuant to clause (f)(i), to a portion of
the information set forth on the Mortgage Loan Schedule
attached to the Indenture and to the calculation of the
Discounted Value of the Initial Collateral (as defined in the
Indenture) or if a letter relating to the same information is
provided to the Trustee, indicating that the Underwriters are
entitled to rely upon their letter to the Trustee.
(g) The Bonds shall have received the rating or ratings
from the rating agency or rating agencies set forth in Schedule I
hereto.
(h) The stock exchange, if any, set forth on Schedule I
hereto shall have agreed in principle on or prior to the Closing Date
to list the Bonds.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
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prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Bonds provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Bonds.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement for the registration of the Bonds as
originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in
connection with the preparation thereof and (ii) such indemnity with
respect to the Basic Prospectus or any Preliminary Final Prospectus
shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Bonds which are the
subject thereof if such person did not receive a copy of the Final
Prospectus (or the Final Prospectus as amended or supplemented)
excluding documents incorporated therein by reference at or prior to
the confirmation of the sale of such Bonds to such person in any case
where such delivery is required by the Act and the untrue statement or
omission of a material fact contained in the Basic Prospectus or any
Preliminary Final Prospectus was corrected in the Final Prospectus (or
the Final Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
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(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the
preparation of the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the
statements set forth under the heading "Underwriting" or "Plan of
Distribution" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in the documents
referred to in the foregoing indemnity furnished to the Company by any
Underwriter, and you, as the Representatives, confirm that such
statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than
under this Section 8. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may elect by written
notice delivered to the 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 the
indemnified party and the indemnifying party and the 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 additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under
this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel 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 shall not be liable for the expenses of
more than one separate counsel, approved by the Representatives in the
case of subparagraph (a), representing the indemnified parties under
subparagraph (a) who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after
notice
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of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; 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) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph
(a) or (b) of this Section 8 is due in accordance with its terms but is
for any reason held by a court to be unavailable from the Company or
the Underwriters on the grounds of policy or otherwise, the Company and
the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) to which
the Company and one or more of the Underwriters may be subject, as
follows in such proportion so that the Underwriters are responsible for
that portion represented by the percentage that the underwriting
discount bears to the sum of such discount and the purchase price of
the Bonds specified in Schedule I hereto and the Company is responsible
for the balance; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Bonds) be responsible
under this subparagraph (i) for any amount in excess of the
underwriting discount applicable to the Bonds purchased by such
Underwriter hereunder.
Notwithstanding anything to the contrary in this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act shall have the same rights to contribution as such Underwriter,
and each person who controls the Company within the meaning of either the Act or
the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the preceding
sentence of this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Bonds agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Bonds set forth
opposite their names in Schedule II hereto bear to the aggregate amount of Bonds
set forth opposite the names of all the remaining Underwriters) the Bonds which
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
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Bonds which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Bonds set forth in Schedule
II hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Bonds, and if such
nondefaulting Underwriters do not purchase all the Bonds, this Agreement will
terminate without liability to any nondefaulting Underwriter or the Company. In
the event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Bonds, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Representatives, impracticable to market the Bonds.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Bonds. The provisions of
Section 7 and 8 hereof and this Section 12 shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto, with a copy to: Hunton & Xxxxxxxx, Bank of America Plaza,
Suite 3500, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn:
Xxxxxxx Xxxxxxxx, Esq. or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn: President, with a copy to: Hunton &
Xxxxxxxx, Bank of America Plaza, Suite 3500, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attn: Xxxxxxx Xxxxxxxx, Esq.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
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14. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to principles of conflict of laws.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
MAIN PLACE FUNDING, LLC
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: President
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
By: BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxxx Xxxxxx
--------------------------------
For themselves and the other several Underwriters, if any, named in
Schedule II to the foregoing Agreement.
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SCHEDULE I
Underwriting Agreement dated May 19, 1999.
Registration Statement No. 333-74817
Representatives: Banc of America Securities LLC
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxx & Co. Incorporated
Prudential Securities Incorporated
Title, Purchase Price and Description of Bonds:
Title: Mortgage-Backed Bonds, Series 1999-1, due 2002
Principal amount: $1,500,000,000
Interest Rate: Three-month LIBOR plus 0.12% per annum
Purchase price (include type of funds and accrued interest or
amortization, if applicable): 99.775% Federal (same day) funds
Bond Ratings: "AAA" by Fitch IBCA, Inc. and "Aaa" by Xxxxx'x Investors
Service, L.P.
Form of Bonds: Book-entry
Depository: The Depository Trust Company
Stock Exchange listing: Luxembourg Stock Exchange
Other provisions: None.
Closing Date, Time and Location: May 25, 1999, 9:30 a.m., Charlotte time,
office of Hunton & Xxxxxxxx, Bank of America Plaza, Suite 3500, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
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SCHEDULE II
Principal Amount
of Bonds to be
Purchased
Underwriters -----------
------------
Banc of America Securities LLC.........................................................................$1,100,000,000
Credit Suisse First Boston Corporation.................................................................$ 100,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.....................................................$ 100,000,000
Xxxxxx Xxxxxxx & Co. Incorporated......................................................................$ 100,000,000
Prudential Securities Incorporated.....................................................................$ 100,000,000
Total..................................................................................................$1,500,000,000
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