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EXHIBIT 1.1
UNDERWRITING AGREEMENT
MAIN PLACE FUNDING, LLC
UNDERWRITING AGREEMENT
_________, 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 __________, 1999 between the Company and
_____________________ 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
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Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be 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 New York, New York, not later
than 1:00 p.m., New York City time, on the business day prior to the Closing
Date.
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
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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 ▇▇▇ ▇▇▇▇ (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 ▇▇▇ ▇▇▇▇
(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.
(b) The Company will cause any Computational Materials
(as defined in Section 10 below) with respect to the Bonds which are
delivered by the Underwriters to the Company pursuant to Section 10 to
be filed with the Commission on a Current Report on Form 8-K (the
"Current Report") pursuant to Rule 13a-11 under the Exchange Act not
later than the business day immediately following the earlier of (i)
the day on which such
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Computational Materials are delivered to counsel for the Company by
the Underwriters prior to 10:30 a.m., New York City time, and (ii) the
date hereof, and will promptly advise the Underwriters when such
Current Report has been so filed. Such Current Report shall be
incorporated by reference in the Final Prospectus and the Registration
Statement. Notwithstanding the two preceding sentences, the Company
shall have no obligation to file materials provided by the
Underwriters pursuant to Section 10 which, in the reasonable
determination of the Company after making reasonable efforts to
consult with the Underwriters, are not required to be filed pursuant
to the ▇▇▇▇▇▇ Letters (as defined in Section 10 below), or which
contain erroneous information or contain any untrue statement of a
material fact or, which, when read in conjunction with the Final
Prospectus, 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
Computational Materials provided by the Underwriters to the Company
pursuant to Section 10 hereof.
(c) 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; provided, however,
that the Company will not be required to file any such amendment or
supplement with respect to any Computational Materials incorporated by
reference in the Final Prospectus other than any amendments or
supplements of such Computational Materials that are furnished to the
Company pursuant to Section 10(d) hereof which the Company determines
to file in accordance therewith.
(d) 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.
(e) 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
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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 NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC.
(f) 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.
(g) 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 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.
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(b) The Company shall have furnished to the
Representatives the opinion of [Hunton & ▇▇▇▇▇▇▇▇] [▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇], 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 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;
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(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 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;
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(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 declaration of trust or by-laws 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 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
& ▇▇▇▇▇▇▇▇] [▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇], counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Final Prospectus, the non-consolidation of
the Company and [___________] in the event of a conservatorship or
receivership of [____________] 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) the
non-
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consolidation of 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 Chairman
of the Board 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.
(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.
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(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
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
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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 (in the case of any Computational Materials in
respect of which the Company agrees to indemnify any Underwriter, as
set forth below, when such are read in conjunction with the Final
Prospectus) 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
(A) 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 or (B) 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 (an "Initial Collateral Error") in
the information concerning the Eligible Mortgage Loans constituting
the Initial Collateral furnished by the Company to any Underwriter in
writing or by electronic transmission that was used in the preparation
of either (x) any Computational 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 Computational
Materials (or amendments or supplements) were based, (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),
and (iii) such indemnity with respect to any Initial Collateral Error
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 received any Computational Materials (or
any written or electronic materials on which the Computational
Materials are based) that were prepared on the basis of such Initial
Collateral Error, if, prior to the time of confirmation of the sale of
the Bonds to such person, the Company notified such Underwriter in
writing of the Initial Collateral Error or provided in written or
electronic form information superseding or correcting such Initial
Collateral Error (in any such case, a "Corrected Initial Collateral
Error"), and such Underwriter failed to notify such person thereof or
to deliver such
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person corrected Computational Materials (or underlying written or
electronic materials). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(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 (A) 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, or (B) any Computational Materials (or amendments or
supplements thereof) furnished to the Company by any Underwriter
pursuant to Section 10 and incorporated by reference in the
Registration Statement or the Final Prospectus (except that no such
indemnity shall be available for any losses, claims, damages or
liabilities, or actions in respect thereof resulting from any Initial
Collateral Error, other than a Corrected Initial Collateral Error).
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 (other than any Computational
Materials (or amendments or supplements thereof) 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
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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 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:
(i) in the case of any losses, claims, damages
and liabilities (or actions in respect thereof) which do not
arise out of or are not based upon any untrue statement or
omission of a material fact in any Computational Materials
(or any amendments or supplements thereof), 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; and
(ii) 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 Computational Materials (or any
amendments or supplements thereof), in such proportion as is
appropriate to reflect the relative fault of the Company on
the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect
thereof) as well as any other relevant equitable
considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material
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fact or the omission or alleged omission to state a material
fact in such Computational Materials (or any amendments or
supplements thereof) results from information prepared by the
Company on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
statement or omission.
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 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. Computational Materials. (a) Not later than 10:30 a.m., New
York City time, on the date hereof, the Underwriters shall deliver to the
Company five complete copies of all materials provided by the Underwriters to
prospective investors in the Bonds which constitute
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"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
▇▇▇▇▇▇, Peabody Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated,
and ▇▇▇▇▇▇ 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 "▇▇▇▇▇▇ Letters") and the filing
of such material is a condition of the relief granted in such letter (such
materials being the "Computational Materials"). Each delivery of Computational
Materials to the Company pursuant to this paragraph (a) shall be effected by
delivering four copies of such materials to counsel for the Company on behalf
of the Company at the address specified in Section 13 hereof and one copy of
such materials to the Company.
(b) The Underwriters represent and warrant to and agree
with the Company, as of the date hereof and as of the Closing Date,
that:
(i) the Computational Materials furnished to the
Company pursuant to Section 10(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 delivery thereof to the
Company with respect to the Bonds in accordance with the
▇▇▇▇▇▇ Letters, and such Computational Materials comply with
the requirements of the ▇▇▇▇▇▇ Letters;
(ii) on the date any such Computational Materials
with respect to the Bonds (or any written or electronic
materials furnished to prospective investors on which the
Computational Materials are based) were last furnished to
each prospective investor and on the date of delivery thereof
to the Company pursuant to Section 10(a) and on the Closing
Date, such Computational Materials (or materials) did not and
will not include any untrue statement of a material fact, or,
when read in conjunction with the Final Prospectus, omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(iii) at the time any Computational Materials (or
any written or electronic materials furnished to prospective
investors on which the Computational Materials are based)
with respect to the Bonds were furnished to a prospective
investor and on the date hereof, the Underwriters possessed,
and on the date of delivery of such materials to the Company
pursuant to this Section 10 and on the Closing Date, the
Underwriters will possess, the capability, knowledge,
expertise, resources and systems of internal control
necessary to ensure that such Computational Materials conform
to the representations and warranties of the Underwriters
contained in subparagraphs (i) and (ii) above of this
paragraph (b); and
(iv) all Computational Materials (or underlying
materials distributed to prospective investors on which the
Computational Materials were based) contained and will
contain a legend, prominently displayed on the first page
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thereof, to the effect that the Company has not prepared,
reviewed or participated in the preparation of such
Computational Materials, is not responsible for the accuracy
thereof and has not authorized the dissemination thereof.
Notwithstanding the foregoing, the Underwriters make no representation or
warranty as to whether any Computational Materials (or any written or
electronic materials on which the Computational Materials are based) included
or will include any untrue statement resulting directly from any Initial
Collateral Error (except any Corrected Initial Collateral Error, with respect
to materials prepared after the receipt by the Underwriters from the Company of
notice of such Corrected Initial Collateral Error or materials superseding or
correcting such Corrected Initial Collateral Error).
(c) The Underwriters acknowledge and agree that the
Company has not authorized and will not authorize the distribution of
any Computational Materials to any prospective investor, and agree
that any Computational Materials with respect to the Bonds furnished
to prospective investors shall include a disclaimer in the form set
forth in paragraph (b)(iv) above. The Underwriters agree that they
will not represent to investors that any Computational Materials were
prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the
Bonds is required to be delivered under the Act, it shall be necessary
to amend or supplement the Final Prospectus as a result of an untrue
statement of a material fact contained in any Computational Materials
provided by the Underwriters pursuant to this Section 10 or the
omission to state therein a material fact required, when considered in
conjunction with the Final Prospectus, to be stated therein or
necessary to make the statements therein, when read in conjunction
with the Final Prospectus, not misleading, or if it shall be necessary
to amend or supplement any Current Report to comply with the Act or
the rules thereunder, the Underwriters, at their expense, 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. The
Underwriters 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,
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, 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
Underwriters to the Company pursuant to this paragraph (d) or (ii)
such filing is not required under the Act.
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(e) The Underwriters (at their own expense) further
agree to provide to the Company any accountants' letters obtained
relating to the Computational Materials, which accountants' letters
shall be addressed to the Company or shall state that the Company may
rely thereon; provided that the Underwriters shall have no obligation
to procure such letter.
11. 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.
12. 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.
13. 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 & ▇▇▇▇▇▇▇▇, Bank of America Plaza,
Suite 3500, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.] [Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Jordan ▇. ▇▇▇▇▇▇▇▇, Esq.]; or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn:
President, with a copy to: [Hunton & ▇▇▇▇▇▇▇▇, Bank of America Plaza, Suite
3500, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Esq.] [Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attn: Jordan ▇. ▇▇▇▇▇▇▇▇, Esq.]
14. 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.
15. 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: NATIONSBANK, N.A., managing member
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
----------------------------------
----------------------------------
----------------------------------
----------------------------------
By:
--------------------------------------
By:
--------------------------------------
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 ____________, 1999
Registration Statement No. 333-71489
Representatives:
---------------------------------
Title, Purchase Price and Description of Bonds:
Title: Mortgage-Backed Bonds, Series ______ due _____
Principal amount: $
-----------------
Interest Rate:
--------------------------------------
Purchase price (include type of funds and accrued interest or
amortization, if applicable): ______% [New York Clearing House (next
day) funds] [Federal (same day) funds]
Bond Ratings: (indicate rating level and name of each rating agency)
Form of Bonds: (indicate physical or book-entry)
Depository: The Depository Trust Company
Stock Exchange listing: Luxembourg Stock Exchange
Other provisions: None.
Closing Date, Time and Location: ________, 1999, ____ a.m., New York City time,
office of _________________.
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SCHEDULE II
Principal Amount
of Bonds to
Underwriters be Purchased
------------ ----------------
21