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EXHIBIT 1.1
FUND AMERICA INVESTORS CORPORATION II
AND
THE UNDERWRITERS
UNDERWRITING AGREEMENT
FOR
FUND AMERICA INVESTORS TRUST 1997 - NMC1
COLLATERALIZED MORTGAGE OBLIGATIONS,
SERIES 1997 - NMC1
September 17, 1997
2
[Underwriting Agent]
September 17, 1997
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
ContiFinancial Services Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fund America Investors Corporation II (the "Company") hereby enters
into this Underwriting Agreement (the "Agreement") and, subject to the terms and
conditions stated herein, proposes to cause Fund America Investors Trust
1997-NMC1 (the "Issuer") to issue and sell to Greenwich Capital Markets, Inc.
collateralized mortgage obligations (the "Obligations") issued pursuant to an
Indenture (the "Indenture") to be dated as of September 1, 1997, between the
Issuer and Norwest Bank Minnesota, National Association, as indenture trustee
(the "Trustee"). Greenwich Capital Markets, Inc. and ContiFinancial Services
Corporation will act as underwriters (collectively the "Underwriters"). The
Obligations will be secured by a pool (the "Pool") of mortgage loans (the
"Mortgage Loans") listed in an attachment to the Indenture. The Obligations will
be issued in a single class. The Obligations will be described more fully in the
Basic Prospectus and the related Prospectus Supplement (each of which terms is
defined below) which the Company will furnish to the Underwriters.
On or prior to the date of issuance of the Obligations, the Company
will obtain a financial guaranty insurance policy (the "Policy") issued by MBIA
Insurance Corp. (the "Insurer") which, subject to the terms of the Policy, will
unconditionally and irrevocably guarantee for the benefit of the holders of the
Obligations to be purchased pursuant to this Agreement, full and complete
payment of the amounts payable on the Obligations other than such amounts as are
excluded by the Policy.
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As used herein, the term "Execution Time" shall mean the date and time
that this Agreement is executed and delivered by the parties hereto; the term
"Agreement," "this Agreement" and terms of similar import shall mean this
Underwriting Agreement and the term "Closing Date" shall mean September 30,
1997. All capitalized terms used but not otherwise defined herein have the
respective meanings set forth in the form of the Prospectus (as defined below).
1. Representations and Warranties of the Company. The Company
represents and warrants to, and covenants with, each Underwriter that:
A. A registration statement on Form S-3 (Registration No.
33-73748), including a prospectus and a form of prospectus supplement
that contemplates the offering of collateralized mortgage obligations
from time to time, has been filed by the Company with the Securities
and Exchange Commission (the "Commission"), pursuant to the Securities
Act of 1933, as amended and the rules and regulations of the Commission
thereunder (collectively, the "1933 Act"), and as amended from time to
time by one or more amendments, including post-effective amendments,
has been declared effective by the Commission. The Company will cause
to be filed with the Commission, after effectiveness of such
registration statement (and any such post-effective amendments), a
final prospectus in accordance with Rules 415 and 424(b)(2) under the
1933 Act, relating to the Obligations.
As used herein, the term "Effective Date" shall mean the
date that the Registration Statement (including the most recently
filed post-effective amendment, if any) became effective
"Registration Statement" shall mean the registration statement
referred to in the preceding paragraph, including the exhibits thereto
and any documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act specifically relating to the terms
of the Obligations or the Mortgage Loans securing the Obligations and
filed with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), except that if the Registration
Statement is amended by the filing with the Commission of a
post-effective amendment thereto, the term "Registration Statement"
shall mean collectively the Registration Statement, as amended by the
most recently filed post-effective amendment thereto, in the form in
which it was declared effective by the Commission. The prospectus
dated September 17, 1997, which constitutes a part of the Registration
Statement, together with the prospectus supplement dated the date
hereof (the "Prospectus Supplement"), relating to the offering of the
Obligations, including any documents incorporated therein by reference
pursuant to the Exchange Act, are hereinafter referred to collectively
as the "Prospectus," except that if the Prospectus is thereafter
amended or supplemented pursuant to Rule 424(b), the term "Prospectus"
shall mean the prospectus, as so amended or supplemented pursuant to
Rule 424(b), from and after the date on which such amended prospectus
or supplement is filed with the Commission. Any preliminary form of
the Prospectus Supplement which has heretofore been filed pursuant to
Rule 402(a) or Rule 424 is hereinafter called a "Preliminary
Prospectus Supplement." Any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration
Statement, the Prospectus or the Prospectus Supplement shall be deemed
to refer to and include the filing of any document under the Exchange
Act after the effective date of the Registration Statement or
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the issue date of the Prospectus or Prospectus Supplement, as the case may be,
incorporated therein by reference.
B. As of the date hereof, and as of the dates when the
Registration Statement became effective, when the Prospectus Supplement is first
filed pursuant to Rule 424(b) under the 1933 Act, when, prior to the Closing
Date, any other amendment to the Registration Statement becomes effective, and
when any supplement to the Prospectus is filed with the Commission, and at the
Closing Date, (i) the Registration Statement, as amended, as of any such time,
and the Prospectus, as amended or supplemented as of any such time, complied or
will comply in all material respects with the applicable requirements of the
1933 Act, (ii) the Registration Statement, as amended, as of any such time, did
not and will not contain any untrue statement of a material fact and did not and
will not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) the
Prospectus, as amended or supplemented as of any such time, did not and will not
contain an untrue statement of a material fact and did not and will not omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to (a) the
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Underwriters as set forth in this
Agreement specifically for use in connection with the preparation of the
Registration Statement or the Prospectus or (b) calculations made by the
Underwriters and contained in any "Computational Materials" or "Structural Term
Sheets" (each as defined below) provided by the Underwriters to the Company
pursuant to Section 4 except to the extent that the information set forth
therein is based on errors or mistakes in the "Pool Information". Pool
Information means information with respect to the characteristics of the
Mortgage Loans as provided by or on behalf of the Company to the Underwriters.
C. The Company is duly organized, validly existing and in
good standing under the laws of the State of Delaware, has full power and
authority (corporate and other) to own its properties and conduct its business
as now conducted by it, and as described in the Prospectus, and is duly
qualified to do business in each jurisdiction in which it owns or leases real
property (to the extent such qualification is required by applicable law) or in
which the conduct of its business requires such qualification except where the
failure to be so qualified does not involve (i) a material risk to, or a
material adverse effect on, the business, properties, financial position,
operation or results of operations of the Company or (ii) any risk whatsoever as
to the enforceability of any Mortgage Loan.
D. There are no actions, proceedings or investigations
pending, or, to the knowledge of the Company, threatened, before any court,
governmental agency or body or other tribunal (i) asserting the invalidity of
this Agreement, the Obligations, the Insurance Agreement dated as of September
1, 1997 (the "Insurance Agreement") among the Company, National Mortgage
Corporation, the Insurer, the Trustee and the Underwriters, the Sales Agreement
(as defined in the Prospectus Supplement), or the
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Trust Agreement (as defined in the Prospectus Supplement), (ii) seeking
to prevent the issuance of the Obligations or the consummation of any
of the transactions contemplated by this Agreement or the Indenture,
(iii) which may, individually or in the aggregate, materially and
adversely affect the validity or enforceability of, this Agreement, the
Obligations or the Trust Agreement, or the performance by the Company
of its obligations under this Agreement or the Trust Agreement, or (iv)
which may affect adversely the federal income tax attributes of the
Obligations as described in the Prospectus.
E. The execution and delivery by the Company of this
Agreement, the Insurance Agreement and the Trust Agreement, the
formation by the Company of the Issuer and the direction by the Company
on behalf of the Issuer to the Trustee to execute, countersign,
authenticate and deliver the Obligations and the transfer and delivery
of the Mortgage Loans to the Issuer by the Company are within the
corporate power of the Company and have been, or will be, prior to the
Closing Date duly authorized by all necessary corporate action on the
part of the Company and the execution and delivery of such instruments,
the consummation of the transactions therein contemplated and
compliance with the provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute or any agreement or instrument to which the
Company is a party or by which it is bound or to which any of the
property of the Company is subject, the Company's articles of
incorporation or bylaws, or any order, rule or regulation of any court,
governmental agency or body or other tribunal having jurisdiction over
the Company or any of its properties; and no consent, approval,
authorization or order of, or filing with, any court or governmental
agency or body or other tribunal is required for the consummation of
the transactions contemplated by this Agreement or the Prospectus in
connection with the sale of the Obligations by the Company. The Company
is not a party to, bound by or in breach or violation of any indenture
or other agreement or instrument, or subject to or in violation of any
statute, order, rule or regulation of any court, governmental agency or
body or other tribunal having jurisdiction over the Company, which
materially and adversely affects, or may in the future materially and
adversely affect, (i) the ability of the Company to perform its
obligations under this Agreement or the Insurance Agreement or (ii) the
business, operations, results of operations, financial position,
income, properties or assets of the Company.
F. This Agreement and the Insurance Agreement have been duly
and validly authorized, executed and delivered by the Company. Assuming
the due execution and delivery by the parties thereto, the Indenture
will constitute the legal, valid and binding obligation of the Issuer
enforceable in accordance with its terms, except as enforceability may
be limited by (i) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors, and (ii) general principles of
equity, whether enforcement is sought in a proceeding at law or in
equity.
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G. The Obligations will conform in all material respects to
the description thereof contained in the Prospectus, and the direction
by the Company on behalf of the Issuer to the Trustee to execute,
countersign, authenticate and deliver the Obligations will be duly and
validly authorized and, when the Obligations have been duly and validly
executed, authenticated, issued and delivered in accordance with the
Indenture and sold to the Underwriters as provided herein, the
Obligations have been validly issued and outstanding and entitled to
the benefits of the Indenture.
H. At the Closing Date, the Mortgage Loans will conform in all
material respects to the description thereof contained in the
Prospectus and the representations and warranties contained in this
Agreement will be true and correct in all material respects.
I. The transfer of the Mortgage Loans to the Issuer at the
Closing Date will be treated by the Company for financial accounting
and reporting purposes as a sale of assets and not as a pledge of
assets to secure debt.
J. The Company possesses all material licenses, certificates,
permits or other authorizations issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by it and as described in the Prospectus and
there are no proceedings, pending or, to the best knowledge of the
Company, threatened, relating to the revocation or modification of any
such license, certificate, permit or other authorization which singly
or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would materially and adversely affect the performance by
the Company of its obligations under this Agreement or the validity or
enforceability of the obligations.
K. Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement, the
Insurance Agreement and the Indenture, or the execution and issuance of
the Obligations have been or will be paid at or prior to the Closing
Date.
L. The Indenture will conform in all material respects to the
description thereof contained in the Prospectus.
M. The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or
the Prospectus or for any additional information with respect to the
offering of the Obligations, (ii) 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 or
(iii) any notification with respect to the suspension of the
qualification of the Obligations for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
N. Each assignment of Mortgage required to be prepared
pursuant to the Indenture is based on forms recently utilized by the
Company with respect to mortgaged properties located in the appropriate
jurisdiction and used in the regular course of the
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Company's business. Based on the Company's experience with such matters
it is reasonable to believe that upon execution each such assignment
will be in recordable form and will be sufficient to effect the
assignment of the Mortgage to which it relates as provided in the
Indenture.
O. No commission or other fee is owed by the Company to any
broker, arranger or other similar person in connection with the sale of
the Mortgage Loans or the Obligations.
Any certificate signed by any officer of the Company and delivered to
the Underwriters in connection with the sale of the Obligations to such
Underwriters shall be deemed a representation and warranty as to the matters
covered thereby by the Company to each person to whom the representations and
warranties in this Section 1 are made.
2. Agreements of the Underwriters.
A. The several Underwriters agree with the Company that upon
the execution of this Agreement and authorization by the Underwriters
of the release of the Obligations, the Underwriters shall offer such
Obligations for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
B. Each Underwriter represents and agrees that:
(i) it has not offered or sold and will
not offer or sell, prior to the date six months after
their date of issuance, any Obligations to persons in
the United Kingdom, except to persons whose
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 in
and will not result in an offer to the public in the
United Kingdom within the meaning of the Public
Offers of Securities Regulations of 1995;
(ii) it has complied and will comply with
all applicable provisions of the Financial Services
Act of 1986 with respect to anything done by it in
relation to the Obligations in, from or otherwise
involving the United Kingdom;
(iii) it has only issued or passed on and
will only issue or pass on to any person in the
United Kingdom any document received by it in
connection with the issuance of the Obligations only
if that person is of a kind described in Article
11(3) of the Financial Services Act of 1986
(Investment Advertisements) (Exceptions) Order 1995,
as amended, or such person is one to whom the
document can lawfully be issued or passed on;
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(iv) no action has been or will be taken by
such Underwriter that would permit a public offering
of the Obligations or distribution of the Prospectus
or Prospectus Supplement or any Computational
Materials or ABS Term Sheets or any other offering
material in relation to the Obligations in any
non-U.S. jurisdiction where action for that purpose
is required unless the Company has agreed to such
actions and such actions have been taken; and
(v) it understands that, in connection with
the issuance, offer and sale of the Obligations and
with the distribution of the Prospectus or Prospectus
Supplement or any Computational Materials or ABS
Terms Sheets or any other offering material in
relation to the Obligations in, to or from any
non-U.S. jurisdiction, the Company has not taken and
will not take any action, and such Underwriter will
not offer, sell or deliver any Obligations or
distribute the Prospectus or Prospectus Supplement or
any Computational Materials or ABS Term Sheets or any
other offering material relating to the Obligations
in, to or from any non-U.S. jurisdiction except under
circumstances which will result in compliance with
applicable laws and regulations and which will not
impose any liability, obligation or responsibility on
the Company or the other Underwriters.
C. Each Underwriter represents and warrants to, and agrees
with, the Company as of the date hereof that the Underwriter has
complied and will comply with all of its obligations arising under
Sections 4I and 4J and, with respect to the Computational Materials and
ABS Term Sheets, provided by the Underwriters to the Company pursuant
to Sections 4I and 4J, in the calculations made by the Underwriters in
such Computation Materials and ABS Term Sheets are accurate in all
material respects (taking into account the assumptions explicitly set
forth in such Computational Materials and ABS Term Sheets, except for
any errors therein attributable to errors or mistakes in the Pool
Information). The Computational Materials and ABS Term Sheets provided
by the Underwriters to the Company constitutes a complete set of the
Computational Materials and ABS Term Sheets required to be filed with
the Commission pursuant to the No-Action Letters. Such Computational
Materials and ABS Term Sheets comply with the requirements of the
Xxxxxx Letters and the PSA Letters referred to in Sections 4I and 4J.
3. Purchase, Sale and Delivery of the Obligations. The Company hereby
agrees, subject to the terms and conditions hereof, to sell the Obligations to
the Underwriters, who, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated, hereby
agree, severally and not jointly, to purchase the entire aggregate principal
amount of the Obligations in the amounts and at the purchase price percentage
set forth in Schedule I to this Agreement. At the time of issuance of the
Obligations, the Mortgage Loans will be sold by National Mortgage Corporation to
the Company pursuant to the Mortgage Loan Sales Agreement and by the Company to
the Issuer pursuant to the Mortgage Loan Contribution Agreement and pledged by
the Issuer to the Indenture Trustee pursuant to the Indenture. National Mortgage
Corporation
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will be obligated, under the Servicing Agreement, to service the Mortgage Loans
either directly or through subservicers.
The Obligations to be purchased by the Underwriters will be delivered
by the Company to the Underwriters (which delivery shall be made through the
facilities of The Depository Trust Company ("DTC") or Cedel Bank, societe
anonyme or the Euroclear System) against payment of the purchase price therefor,
in an amount equal to the percentage of the aggregate original principal amount
thereof as specified in the Schedule I to this Agreement, plus interest accrued,
if any, at the rate on the aggregate original principal amount thereof from the
date specified therein to, but not including, the Closing Date, by a same day
federal funds wire payable to the order of the Company.
Settlement shall take place at the specified offices of Hunton &
Xxxxxxxx, at 10:00 a.m., New York City time, on September 30, 1997, or at such
other place and at such other time thereafter (such time being herein referred
to as the "Closing Date"), in each case as the Underwriters and the Company
shall determine. The Obligations will be prepared in definitive form and in such
authorized denominations as the Underwriters may request, registered in the name
of Cede & Co., as nominee of DTC.
The Company agrees to have the Obligations available for inspection and
review by the Underwriters in New York City not later than 11:00 a.m. New York
City time on the business day prior to the Closing Date.
4. Covenants of the Company. The Company covenants and agrees with each
Underwriter that:
A. The Company will promptly advise the Underwriters and
counsel to the Underwriters (i) when any amendment to the Registration
Statement relating to the offering of the Obligations shall have become
effective, (ii) of any request by the Commission for any amendment to
the Registration Statement or the Prospectus or for any additional
information to the extent applicable to the offering of the
Obligations, (iii) 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 (iv)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Obligations for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will not file any amendment to the
Registration Statement or supplement to the Prospectus after the date
of this Agreement and prior to the Closing Date for the Obligations
unless the Company has furnished the Underwriters and counsel to the
Underwriters copies of such amendment or supplement for their review
prior to filing and will not file any such proposed amendment or
supplement to which the Underwriters reasonably and promptly objects,
unless such filing is required by law. The Company will use its best
efforts to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if issued, to obtain
as soon as possible the withdrawal thereof.
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B. If, at any time during the period in which the Prospectus
is required by law to be delivered, any event occurs as a result of
which the 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 the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Prospectus to comply with
the 1933 Act or the rules under the 1933 Act, the Company will promptly
prepare and file with the Commission, subject to Paragraph A of this
Section 4, an amendment or supplement that will correct such statement
or omission or an amendment that will effect such compliance and, if
such amendment or supplement is required to be contained in a
post-effective amendment to the Registration Statement, will use its
best efforts to cause such post-effective amendment of the Registration
Statement to become effective as soon as possible.
C. The Company will furnish to the Underwriters, without charge,
copies of the Registration Statement (including exhibits thereto), any
documents incorporated therein by reference, and, so long as delivery
of a prospectus by the Underwriters or a dealer may be required by the
1933 Act, as many copies of the Prospectus, as amended or
supplemented, and any amendments and supplements thereto as the
Underwriters may reasonably request. The Company will pay the expenses
of printing all offering documents relating to the offering of the
Obligations.
D. As soon as practicable, but not later than eighteen months
after the effective date of the Registration Statement, the Company
will cause the Issuer to make generally available to holders of
Obligations an earnings statement of the Issuer (which need not be
audited) complying with Section 11 (a) of the 1933 Act and the rules
and Regulations of the Commission thereunder. Such statement will be
filed with the Commission pursuant to the provisions of the Exchange
Act.
E. So long as any of the Obligations are outstanding, the
Company will cause to be delivered to the Underwriters, (i) all
documents required to be distributed to the holders of the
Obligations, (ii) from time to time, any other information concerning
the Issuer filed with any government or regulatory authority that is
otherwise publicly available, as the Underwriters may reasonably
request, (iii) the annual statement as to compliance delivered to the
Trustee pursuant to the Indenture, (iv) the annual statement of a firm
of independent public accountants furnished to the Trustee pursuant to
the Indenture and (v) any information required to be delivered by the
Company or the Servicer to the Trustee to be distributed to holders of
the Obligations pursuant to the Indenture.
F. The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is consummated, will pay
all expenses in connection with the transactions contemplated herein,
including but not limited to (i) the expenses of printing (or
otherwise reproducing) all documents relating to the offering and the
fees and disbursements of its counsel incurred in connection with the
issuance and delivery of the Obligations, (ii) the preparation of all
documents specified in this Agreement, (iii) any
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fees and expenses of the Trustee, the Insurer and any other credit
support provider (including reasonable legal fees) that are not payable
by or from the Issuer or any other party, (iv) any accounting fees and
disbursements relating to the offering of the Obligations, (v) any fees
charged by rating agencies for rating the Obligations, (vi) any
reasonable fees and disbursements of counsel to the Underwriters
relating to Blue Sky undertakings, and (vii) the fees and charges
related to the filing with the Commission of such Current Reports on
Form 8-K and such other materials as are contemplated hereby, whether
pursuant to XXXXX or otherwise.
G. The Company will endeavor to qualify the Obligations for
sale to the extent necessary under any state securities or Blue Sky
laws in any jurisdictions as may be reasonably requested by the
Underwriters, if any, and will pay all expenses (including reasonable
fees and disbursements of counsel to the Underwriters) in connection
with such qualification and in connection with the determination of the
eligibility of the Obligations for investment under the laws of such
jurisdictions as the Underwriters may reasonably designate, if any.
H. The Company will file with the Commission within fifteen
days of the Closing Date, a Current Report on Form 8-K setting forth
specific information concerning the description of the Mortgage Pool
(the "Form 8-K -- Mortgage Pool"). Without limiting the generality of
any other provision hereof, such Form 8-K -- Mortgage Pool shall be
deemed to be a part of the Registration Statement and Prospectus from
and after the date it is first filed with the Commission.
I. The Company will cause any Computational Materials (as
defined below) with respect to the Obligations which are delivered by
any Underwriter to the Company hereunder to be filed with the
Commission on a Current Report on Form 8-K (the "Form 8-K --
Computational Materials") at or before the time of filing of the
Prospectus pursuant to Rule 424(b) under the 1933 Act. Each Underwriter
shall deliver to the Company (or counsel to the Company) prior to the
distribution thereof a complete copy of all materials (which, if
reasonably requested by the Company, shall be on computer compatible
disk or such other acceptable electronic form) proposed to be provided
by such Underwriter to prospective investors in such Obligations which
constitute or are deemed to constitute Computational Materials or ABS
Term Sheets. The Company shall promptly, and in any event within one
business day of the receipt thereof either approve such materials or
communicate corrections, additions and/or deletions to the Underwriters
and the Underwriters shall submit revised materials to the Company.
Each Underwriter shall deliver the final form of any such materials to
the Company within one business day of the date or dates on which the
related Form 8-K -- Computational Materials or Form 8-K -- ABS Term
Sheets (as defined herein) relating to the Obligations are required to
be filed by the Company with the Commission pursuant to Sections 4I or
4J hereof. The parties hereto agree that the Company shall have no
liability for any failure to file such Computational Materials on such
date if the related Underwriter has not delivered such materials to the
Company one business day prior to the date such filing is to be made.
"Computational Materials" shall mean those materials
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delivered by an Underwriter to the Company within the meaning of the
no-action letter dated May 20, 1994 issued by the Division of
Corporation Finance of the Commission to Xxxxxx, Peabody Acceptance
Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated, and Xxxxxx
Structured Asset Corporation and the no-action letter dated May 27,
1994 issued by the Division of Corporation Finance of the Commission to
the Public Securities Association (together, the "Xxxxxx Letters") for
which the filing of such material is a condition of the relief granted
in such letters.
J. The Company will cause any ABS Term Sheets (as defined
below) with respect to the Obligations which are delivered by any
Underwriter to the Company pursuant to Section 9 hereof to be filed
with the Commission on one or more Current Reports on Form 8-K
(collectively, the "Form 8-K -- ABS Term Sheets") (i) at or before the
time of filing of the Prospectus pursuant to Rule 424(b) under the 1933
Act, in the case of Structural Term Sheets and (ii) within two business
days of first use in the case of Collateral Term Sheets. Each
Underwriter shall deliver to the Company (or counsel to the Company)
prior to the distribution thereof a complete copy of all materials
(which, if reasonably requested by the Company, shall be on computer
compatible disk or such other acceptable electronic form) proposed to
be provided by such Underwriter to prospective investors in such
Obligations which constitute or are deemed to constitute Computational
Materials or ABS Term Sheets. The Company shall promptly, and in any
event within one business day of the receipt thereof either approve
such materials or communicate corrections, additions and/or deletions
to the Underwriters and the Underwriters shall submit revised materials
to the Company. The parties hereto agree that the Company shall have no
liability for any failure to file such ABS Term Sheets on such dates if
the related Underwriter has not delivered such materials to the Company
one business day prior to the date such filing is to be made. "ABS Term
Sheet" shall mean those materials delivered by an Underwriter to the
Company in the form of "Structural Term Sheets" or "Collateral Term
Sheets", in each case within the meaning of the no-action letter dated
February 13, 1995 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (the "PSA Letter") for
which the filing of such material is a condition of the relief granted
in such letter.
5. Conditions of the Underwriters' Obligation. The obligation of the
Underwriters to purchase and pay for the Obligations as provided herein shall be
subject to the accuracy as of the date hereof, the Execution Time and the
Closing Date (as if made at such Closing Date) of the representations and
warranties of the Company contained herein, to the accuracy of the statements of
the Company made in any certificate or other document delivered pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder, and to the following additional conditions:
A. The Registration Statement shall have become effective no
later than the date hereof, and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened, and the Prospectus shall have been filed pursuant to Rule
424(b) of the 1933 Act as shall be required pursuant to such Rule.
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B. The Underwriters shall have received the Indenture and the
Obligations in form and substance satisfactory to the Underwriters,
duly executed by all signatories required pursuant to the respective
terms thereof.
C. (1) The Underwriters shall have received the favorable
opinion of Hunton & Xxxxxxxx, special counsel to the Company, or of
such other counsel to the Company as shall be acceptable to the
Underwriters
(2) The Underwriters shall have received the
favorable opinion of Xxxxx Xxxxxxxxxx, special counsel to the
Underwriters, dated the Closing Date, with respect to the Indenture,
the Obligations, the due authorization, execution and delivery of this
Agreement, and such other matters as the Underwriters may reasonably
request.
In rendering their opinions, the counsel described in
this Paragraph C may rely, as to matters of fact, on certificates of
responsible officers of the Company, National Mortgage Corporation, the
Owner Trustee, the Trustee and public officials. Such opinions may also
assume the due authorization, execution and delivery of the instruments
and documents referred to therein by the parties thereto other than the
Company.
D. The Underwriters shall have received a letter from Deloitte
& Touche dated the date of the Prospectus Supplement, in form and
substance satisfactory to the Underwriters, to the effect that they
have performed certain specified procedures requested by the
Underwriters with respect to the information set forth in the
Prospectus, the Computational Materials and the ABS Term Sheets and
certain matters relating to National Mortgage Corporation.
E. The Obligations shall have been rated in the highest rating
category by Standard & Poor's, a division of the XxXxxx-Xxxx Companies,
Inc. and Xxxxx'x Investors Service, Inc., and such ratings shall not
have been rescinded. The Underwriters and counsel for the Underwriters
shall have received copies, addressed to the Underwriters and upon
which they may rely, of any opinions of counsel supplied to the rating
organizations relating to any matters with respect to the Obligations.
Any such opinions shall be dated the Closing Date.
F. The Underwriters shall have received from the Company a
certificate, signed by the president, an executive vice president or a
vice president of the Company, dated the Closing Date, to the effect
that the signer of such certificate has carefully examined the
Registration Statement, the Indenture and this Agreement and that, to
the best of his or her knowledge based upon reasonable investigation,
the representations and warranties of the Company in this Agreement, as
of the Closing Date, are true and correct, 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.
The Company shall attach to such certificate an incumbency
certificate and shall
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certify in an officer's certificate a true and correct copy of its
articles of incorporation and bylaws which are in full force and effect
as of each relevant date and on the date of such certificate and a
certified true copy of the resolutions of its Board of Directors with
respect to the transactions contemplated herein.
G. The Underwriters shall have received a favorable opinion of
counsel to the Trustee, dated the Closing Date, in form and substance
satisfactory to the Underwriters.
In rendering such opinion, such counsel may rely, as to
matters of fact, on certificates of responsible officers of the
Company, the Trustee and public officials. Such opinion may also assume
the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the
Issuer.
H. The Underwriters shall have received a favorable opinion of
counsel to the Insurer, dated the Closing Date, in form and substance
satisfactory to the Underwriters.
In rendering such opinion, such counsel may rely, as to
matters of fact, on certificates of responsible officers of the
Company, the Insurer and public officials. Such opinion may also assume
the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the
Issuer.
I. The Underwriters shall have received from the Trustee a
certificate, signed by an authorized officer or representative of the
Trustee, dated the Closing Date, to the effect that each person who, as
an officer or representative of the Trustee, signed or signs the
Obligations, the Indenture or any other document delivered pursuant
hereto, on the Execution Time or on the Closing Date, in connection
with the transactions described in the Indenture was, at the respective
times of such signing and delivery, and is now, duly elected or
appointed, qualified and acting as such officer or representative, and
the signatures of such persons appearing on such documents are their
genuine signatures.
J. The Underwriters shall have received from the Issuer a
certificate, signed by the president, a senior vice president or a vice
president of the Issuer, dated the Closing Date, to the effect that
each person who, as an officer or representative of the Issuer, signed
or signs the Obligations, the Indenture or any other document delivered
pursuant hereto, on the Execution Time or on the Closing Date, in
connection with the transactions described in the Indenture was, at the
respective times of such signing and delivery, and is now, duly elected
or appointed, qualified and acting as such officer or representative,
and the signatures of such persons appearing on such documents are
their genuine signatures. The Policy shall have been duly executed and
issued at or prior to the Closing Date and shall conform in all
material respects to the description thereof in the Prospectus.
K. On or prior to the Closing Date, there has been no
downgrading, nor has any notice been given of any intended or potential
downgrading.
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L. On or prior to the Closing Date there shall not have
occurred any downgrading, nor shall any notice have been given of (i)
any intended or potential downgrading or (ii) any review or possible
change in rating the direction of which has not been indicated, in the
rating accorded the Insurer's claims paying ability by any "nationally
recognized statistical rating organization" (as such term is defined
for purposes of the Exchange Act).
M. There has not occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, since the Date
of this Agreement, of (i) the Company, or (ii) the Insurer, that is in
the Underwriters' judgment material and adverse or that makes it in the
Underwriters' judgment impracticable to market the Obligations on the
terms and in the manner contemplated in the Prospectus.
N. The Underwriters and counsel for the Underwriters shall
have received copies of any separate opinions of counsel to the
Company, the Insurer or the Issuer supplied to the Trustee relating to
matters with respect to the Obligations or the Policy, and such
opinions shall be dated the Closing Date.
O. The Underwriters shall have received such further
information, certificates and documents as the Underwriters may
reasonably have requested not less than one (1) full business day prior
to the Closing Date.
P. There shall have been executed and delivered by National
Mortgage Corporation a letter agreement with the Underwriters, pursuant
to which National Mortgage Corporation agrees to become jointly and
severally liable with the Company for the payment of the Joint and
Several Obligations (as defined in such letter agreement). Such letter
agreement with the Underwriters is substantially in the form of Exhibit
A hereto.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects, as determined by the Underwriters and
counsel to the Underwriters, when and as provided in this Agreement, this
Agreement and all obligations of the Underwriters hereunder, may be canceled on,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
6. Expenses. If the sale of the Obligations provided for herein is not
consummated by reason of a default by the Company (not resulting from a default
by the Underwriters) in its obligations hereunder, then the Company will
reimburse the Underwriters, upon demand, for all reasonable out-of-pocket
expenses that shall have been incurred by them in connection with their
investigation with regard to the Company and the Obligations and the proposed
purchase and sale of the Obligations.
7. Indemnification and Contribution.
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A. The Company will indemnify and hold harmless each
Underwriter, each of their respective officers and directors and each
person who controls any Underwriter within the meaning of the 1933 Act
or the Exchange Act, against any and all losses, claims, damages, or
liabilities (including the cost of any investigation, legal and other
expenses reasonably incurred in connection with and amounts paid in
settlement of any action, suit, proceeding or claim asserted), joint or
several, to which they or any of them may become subject, under the
1933 Act, the Exchange Act or other federal or state 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 an untrue statement or alleged untrue statement of a material fact
contained (i) in the Registration Statement or arise out of or are
based upon the omission or alleged omission to state therein a material
fact necessary to make the statements therein not misleading, (ii) in
the Prospectus or arise out of or are based upon the omission or
alleged omission to state there in a material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading or (iii) in the Computational Materials or
ABS Terms Sheets or arise out of or are based upon the omission or
alleged omission to state there in a material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading, and will reimburse each such indemnified
party for any legal or other expenses reasonably incurred by it in
connection with investigating or defending against such loss, claim,
damage, liability or action; provided, however, that (a) the Company
shall 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 an untrue
statement or alleged untrue statement or omission or alleged omission
made (i) therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of an Underwriter,
as described (and to the extent described) in Section 8 of this
Agreement or (ii) in any Computational Materials or ABS Term Sheets
provided by the Underwriters to the Company pursuant to Sections 4I and
4J (except to the extent that any untrue statements or errors contained
therein are based on or constitute Pool Information provided by the
Company), and (b) such indemnity with respect to any Corrected
Statement (as defined below) in such Prospectus (or supplement thereto)
shall not inure to the benefit of such Underwriter (or any person
controlling such Underwriter) from whom the person asserting any loss,
claim, damage or liability purchased the Obligations that are the
subject thereof if such person did not receive a copy of a supplement
to such Prospectus at or prior to the confirmation of the sale of such
Obligations and the untrue statement or omission of a material fact
contained in such Prospectus (or supplement thereto) was corrected (a
"Corrected Statement") in such other supplement and such supplement
timely was furnished by the Company to such Underwriter within a
reasonable time prior to the delivery of such confirmation. This
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
B. Each Underwriter, will severally indemnify and hold
harmless the Company, each of its officers and directors and each
person, if any, who controls the Company within the meaning of the 1933
Act or the Exchange Act against any losses, claims, damages or
liabilities to which they or any of them become subject under the 1933
Act,
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the Exchange Act or other federal or state law or regulation, at common
law or otherwise, to the same extent as the foregoing indemnity,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in (i) the
Registration Statement or arise out of or are based upon the omission
or alleged omission to state therein a material fact necessary to make
the statements therein not misleading or in (ii) the Prospectus or
arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made therein in reliance upon and in conformity
with written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter, as described in Section 8
of this Agreement or in (iii) any calculations made by the Underwriters
contained in Computational Materials or ABS Terms Sheets provided by
the Underwriters pursuant to Sections 4I and 4J (except to the extent
that any untrue statements or errors contained therein attributable to
errors or mistakes in the Pool Information provided by the Company),
and such Underwriter or the Underwriters, as the case may be, will
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
against such loss, claim, damage, liability or action.
C. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Paragraphs A and B above,
such person (hereinafter called the indemnified party) shall promptly
notify the person against whom such indemnity may be sought
(hereinafter called the indemnifying party) in writing thereof; but the
omission to notify the indemnifying party shall not relieve such
indemnifying party from any liability which it may have to any
indemnified party otherwise than under such Paragraph. The indemnifying
party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate
in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding any
indemnified party shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, or
(ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them or because different defenses are available to such parties. It is
understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all such indemnified parties, and
that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Underwriters
in the case of parties
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indemnified pursuant to Paragraph A and by the Company in the case of
parties indemnified pursuant to Paragraph B. The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there is a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such proceeding.
D. If the indemnification provided for in this 7 is
unavailable to an indemnified party in respect of any losses, claims,
damages or liabilities referred to herein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute
to the amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative benefits received by the Company
and the Underwriters from the sale of the Obligations.
The relative benefits received by the Company and the
Underwriters shall be deemed to be in such proportion so that the
Underwriters are responsible for that portion determined by multiplying
the total amount of such losses, claims, damages and liabilities,
including legal and other expenses, by a fraction, the numerator of
which is (x) the excess of the Aggregate Resale Price of the
Obligations over the aggregate purchase price of the Obligations
specified in Schedule I and the denominator of which is (y) the
Aggregate Resale Price of such Obligations, and the Company is
responsible for the balance, provided, however, that no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of the
immediately preceding sentence, the "Aggregate Resale Price" of the
Obligations at the time of any determination shall be the weighted
average of the purchase prices (in each case expressed as a percentage
of the aggregate principal amount of the Obligations so purchased),
determined on the basis of such principal amounts, paid to the
Underwriters by all initial purchasers of the Obligations from the
Underwriters.
E. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in Paragraph D. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in
Paragraph D shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of Section 8D, the
Underwriters shall not be required to contribute any amount by which
the difference between the Aggregate Resale Price and the aggregate
purchase price of the Obligations specified in Schedule I exceeds the
amount of any damages that the
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Underwriters have otherwise been required to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission.
F. The Company and the Underwriters each expressly waive, and
agree not to assert, any defense to their respective indemnification
and contribution obligations under this Section 7 which they might
otherwise assert based upon any claim that such obligations are
unenforceable under federal or state securities laws or by reasons of
public policy.
G. The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls the Underwriters within the meaning of the 1933
Act or the Exchange Act; and the obligations of the Underwriters under
this Section 7 shall be in addition to any liability that the
Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company and to each person, if
any, who controls the Company within the meaning of the 1933 Act or the
Exchange Act; provided, however, that in no event shall the Company or
the Underwriters be liable for double indemnification.
8. Information. Supplied by Underwriters; Representations and
Warranties of the Underwriters. The Underwriters and the Company agree that the
following constitute the only information furnished by the Underwriters to the
Company for the purposes of Sections 1B and 7A hereof:
(i) the statements set forth in the last
paragraph on the front cover page of the Prospectus
Supplement regarding market making, and information
under the heading "Underwriting" in the Prospectus
Supplement, to the extent such information relates to
all of the Underwriters and not to any particular
Underwriter or affiliate of any particular
Underwriter, have been supplied by or on behalf of
all of the Underwriters jointly;
(ii) the information under the heading
"Underwriting" in the Prospectus Supplement, to the
extent such information relates to a particular
Underwriter or affiliate of such Underwriter.
9. Default by either of the Underwriters. If either of the Underwriters
participating in the offering of Obligations shall fail at the applicable
Closing Time to purchase the Obligations which it is obligated to purchase
hereunder (the "Defaulted Obligations"), then the Company shall have the right,
within 24 hours thereafter, to make arrangements for the non-defaulting
Underwriter, or any other Underwriter, to purchase all, but not less than all,
of the Defaulted Obligations in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, the Company has not completed such
arrangements within such 24-hour period, then:
(i) if the aggregate principal amount of
Defaulted Obligations
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does not exceed 10% of the aggregate principal amount
of the Obligations to be purchased pursuant hereto,
the non-defaulting Underwriter shall be obligated to
purchase the full amount thereof, or
(ii) if the aggregate principal amount of
Defaulted Obligations exceeds 10% of the aggregate
principal amount of the Obligations to be purchased
pursuant hereto , this Agreement shall terminate,
without any liability of the non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve the Defaulting
Underwriter from liability with respect to any default of such Underwriter under
this Agreement
In the event of a default by either Underwriter as set forth in this
Section, the Company shall have the right to postpone the applicable Closing
Time for a period of time not exceeding seven days in order that any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements may be effected.
10. Notices. All communications hereunder shall be in writing and, if
sent to any Underwriter, shall be mailed or delivered or telecopied and
confirmed in writing to such Underwriter and, if sent to the Company, shall be
mailed, delivered or telegraphed and confirmed in writing to the Company at Fund
America Investors Corporation II , 0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx, Xxxxx 0000
X, Xxxxxxxxx, XX 00000, Attention: Xxxxxx X.
Xxxxxx, President.
11. Survival. All representations, warranties, covenants and agreements
of the Company contained herein or in agreements or certificates delivered
pursuant hereto, the agreements of the Underwriters and the Company contained in
Section 7 hereof, and the representations, warranties and agreements of the
Underwriters contained in Section 2 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Underwriters or any controlling persons, or any subsequent purchaser or the
Company or any of its officers, directors or any controlling persons, and shall
survive delivery of and payment for the Obligations. The provisions of Sections
4, 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
12. Termination. The Underwriters shall have the right to terminate
this Agreement by giving notice as hereinafter specified at any time at or prior
to the applicable Closing Date if (a) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National Market,
the Chicago Board Options Exchange, the Chicago Board of Trade or the London
Stock Exchange Limited, (b) a general moratorium on commercial banking
activities shall have been declared by any of the federal or New York State
authorities, (c) there shall have occurred any outbreak or escalation of
hostilities or any change in the national or international financial markets or
any calamity or crisis which, in the Underwriters' reasonable judgment, is
material and adverse, and, in the case of any of the events specified in clauses
(a) through (c), such event singly or together with any other such event makes
it in the Underwriters' reasonable judgment
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impractical to market the Obligations. Any such termination shall be without
liability of any other party except that the provisions of Paragraph G of
Section 4 (except with respect to expenses of the Underwriters) and Section 7
hereof shall at all times be effective. If the Underwriters elect to terminate
this Agreement as provided in this Section 12, the Company shall be notified
promptly by the Underwriters by telephone, telegram or facsimile transmission,
in any case, confirmed by letter.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns
(which successors and assigns do not include any person purchasing any of the
Obligations from the Underwriters), and the officers and directors and
controlling persons referred to in Section 7 hereof and their respective
successors and assigns, and no other persons will have any right or obligations
hereunder.
14. Applicable Law; Venue. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York. Any
action or proceeding brought to enforce or arising out of any provision of this
Agreement shall be brought only in a state or federal court located in the
Borough of Manhattan, New York City, New York, and the parties hereto expressly
consent to the jurisdiction of such courts and agree to waive any defense or
claim of forum non conveniens they may have with respect to any such action or
proceeding brought.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall together constitute but one and the same
instrument.
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16. Amendments and Waivers. This Agreement may be amended, modified,
altered or terminated, and any of its provisions waived, only in a writing
signed on behalf of the parties hereto.
Very truly yours,
FUND AMERICA INVESTORS
CORPORATION II
By:
-----------------------------------
Name:
Title:
GREENWICH CAPITAL MARKETS, INC.
By:
----------------------------
Name:
Title:
CONTIFINANCIAL SERVICES CORPORATION
By:
----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
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