Exhibit 1.1
ELMWOOD FUNDING LIMITED
PASS THROUGH TRUST CERTIFICATES
UNDERWRITING AGREEMENT
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February __, 1997
CITICORP SECURITIES, INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Elmwood Funding Limited, a Cayman Islands exempted limited liability
company (the "COMPANY"), proposes that United States Trust Company of New York,
as trustee (the "TRUSTEE") will from time to time sell to Citicorp Securities,
Inc. (the "UNDERWRITER") pass through trust certificates (the "SECURITIES") on
the terms and conditions set forth herein. The Securities are to be issued from
time to time in series (each a "SERIES") pursuant to a Trust Agreement (the
"TRUST AGREEMENT") between the Company, as depositor, and the Trustee. Each
Series of Securities will represent in the aggregate the entire beneficial
ownership interest in a publicly issued, fixed income debt security or a pool of
such debt securities (the "UNDERLYING SECURITIES"), together with other assets,
if any, designed to assure the servicing or timely distribution of payments to
holders of the Securities, to be deposited by the Company in a trust (the
"TRUST") for the benefit of the holders of Securities of such Series. Each
Trust Agreement will consist of (a) the Standard Terms for Trust Agreements
dated as of February [__], 1997 (the "STANDARD TERMS FOR TRUST AGREEMENTS"),
between the Company and the Trustee and (b) a Supplement dated as of the date of
issuance of the related Series of Securities (the "SERIES SUPPLEMENT") relating
to such Series of Securities. The Securities of a Series shall have the terms
described in the Prospectus and the relevant Prospectus Supplement referred to
in Section 1(a), as such documents may be amended or supplemented from time to
time. The form of the Standard Terms for Trust Agreements has been filed as an
exhibit to the Registration Statement (as defined below). This is to confirm
the agreement concerning the purchase of the Securities from the Company by the
Underwriter.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. On the
Closing Date (as defined below) for each Series of Securities, the Company
represents and warrants to and agrees with the Underwriter that:
(a) A registration statement on Form S-3 (RegistrationNo. 333-5696),
including a form of prospectus, relating to the Securities and the
offering thereof from time to time in accordance with Rule 415 under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), has
been prepared by the Company in conformity with the
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requirements of the Securities Act and the rules and regulations
thereunder (the "RULES AND REGULATIONS") of the Securities and
Exchange Commission (the "COMMISSION") and has been filed by the
Company with the Commission. The Company may have filed one or more
amendments thereto, including the related preliminary prospectus, each
of which has previously been furnished to the Underwriter. The Company
will file with the Commission either (i) prior to effectiveness of
such registration statement, a further amendment to such registration
statement (including the form of final prospectus) or (ii) after
effectiveness of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b)(1) or (4). In the case of clause
(ii), the Company has included in such registration statement, as
amended at the Effective Time (as defined below), all information
(other than information permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A ("RULE 430A
INFORMATION")) required by the Securities Act and the Rules and
Regulations to be included in the final prospectus with respect to the
Securities and the offering thereof. As filed, such amendment and form
of final prospectus, or such final prospectus, shall contain all Rule
430A Information, together with all other such required information,
with respect to the Securities and the offering thereof and, except to
the extent the Underwriter shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to the
Underwriter prior to the execution of this Agreement or, to the extent
not completed at such time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus and Prospectus Supplement) as the
Company has advised the Underwriter, prior to the execution of this
Agreement, will be included or made therein. For purposes of this
Agreement, "EFFECTIVE TIME" means the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was or is declared effective by the Commission.
"PRELIMINARY PROSPECTUS" means each prospectus included in such
registration statement, or amendments thereof, before it becomes
effective under the Securities Act, any prospectus filed with the
Commission by the Company pursuant to Rule 424(a) and the prospectus
included in the Registration Statement at the Effective Time that
omits Rule 430A Information. Such registration statement, as amended
at the Effective Time, including any documents incorporated by
reference therein and all Rule 430A Information, if any, is
hereinafter referred to as the "REGISTRATION STATEMENT", and the form
of prospectus relating to the Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) or, if no
such filing is required, as included in the Registration Statement is
hereinafter referred to as the "PROSPECTUS". The Registration
Statement includes a basic prospectus referred to below which, as
supplemented from time to time, will be used in connection with the
offering of each Series of Securities. A prospectus supplement or
supplements reflecting the terms of each Series of Securities, the
terms of the offering thereof and other matters relating to such
Series of Securities will be prepared and filed with the Commission,
such prospectus supplement, in the form first filed on or after the
date hereof pursuant to Rule 424 under the Securities Act is herein
referred to as a "PROSPECTUS SUPPLEMENT" and any such prospectus
supplement in the form or forms filed prior to the filing of the
Prospectus Supplement is herein referred to as a "PRELIMINARY
PROSPECTUS SUPPLEMENT". Reference made herein to any Preliminary
Prospectus or Preliminary Prospectus Supplement or to any Prospectus
or Prospectus Supplement shall be deemed to refer to and include any
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, as of the date of such
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Preliminary Prospectus, Preliminary Prospectus Supplement, Prospectus
Supplement or the Prospectus, as the case may be, and any reference to
any amendment or supplement to any Preliminary Prospectus, Preliminary
Prospectus Supplement, Prospectus Supplement or the Prospectus shall
be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"),
after the date of such Preliminary Prospectus, Preliminary Prospectus
Supplement, Prospectus Supplement or Prospectus, as the case may be,
and incorporated by reference in such Preliminary Prospectus,
Prospectus Supplement or the Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be
deemed to include any annual report of the Company filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Time that is incorporated by reference in the
Registration Statement.
(b) The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus, Preliminary Prospectus Supplement,
Prospectus Supplement or the Prospectus. At the Effective Time, the
Registration Statement did or will, and when the Prospectus and any
Prospectus Supplement is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Prospectus and any Prospectus
Supplement will, comply in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act of
1939, as amended (the "TRUST INDENTURE ACT"), and the respective rules
thereunder; at the Effective Time, the Registration Statement did not
or will not include 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; at the Effective
Time and on each Closing Date, the Trust Agreement did or will comply
in all material respects with the applicable requirements of the Trust
Indenture Act and the rules thereunder; and, at the Effective Time,
the Prospectus, if not filed pursuant to Rule 424(b), did not or will
not, and on the date of any filing pursuant to Rule 424(b) and on each
Closing Date, the Prospectus and the relevant Prospectus Supplement
will not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The preceding sentence does not apply to (i) that
part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) of the Trustee
under the Trust Indenture Act or (ii) information contained in or
omitted from the Registration Statement or the Prospectus or any
Prospectus Supplement in reliance upon and in conformity with written
information furnished to the Company by the Underwriter specifically
for use therein (the "UNDERWRITER'S INFORMATION"). The Trust
Agreement conforms in all respects to the requirements of the Trust
Indenture Act, and the rules and regulations of the Commission
thereunder.
(c) The documents incorporated by reference in the Prospectus and any
Prospectus Supplement, when filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and any further documents
so filed and incorporated by reference in the Prospectus or any
Prospectus Supplement, when such documents are filed with the
Commission, will conform in all material respects to the
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requirements of the Exchange Act and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(d) The Company has been duly organized and is validly existing as an
exempted limited liability company under the laws of the Cayman
Islands and has all power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged.
(e) The Company has full right, power and authority to execute and deliver
this Agreement and each Trust Agreement and to perform its obligations
hereunder and thereunder; and all corporate action required to be
taken for the due and proper authorization, execution, delivery and
performance by the Company of this Agreement and each Trust Agreement
and the consummation of the transactions contemplated by this
Agreement and each Trust Agreement have been duly and validly taken.
(f) Each Trust Agreement, when duly executed by the proper directors of
the Company and delivered by the Company, will constitute a valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms; and the Securities, when duly executed,
authenticated and delivered as provided in the relevant Trust
Agreement, will be duly and validly issued and outstanding and will be
entitled to the benefits of such Trust Agreement; and each Trust
Agreement and the Securities conform to the descriptions thereof
contained in the Prospectus and the relevant Prospectus Supplement.
(g) The execution, delivery and performance of this Agreement and each
Trust Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such actions
result in any violation of the provisions of the memorandum and
articles of association of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties or assets; and
except for the registration of the Securities under the Securities
Act, the qualification of each Trust Agreement under the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state securities laws in connection with the
purchase and distribution of the Securities by the Underwriter, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement
or any Trust Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby.
(h) There are no contracts or other documents which are required to be
described in the Prospectus or Prospectus Supplement or filed as
exhibits to the Registration Statement by the Securities Act or by the
Rules and Regulations and which have not been so described or filed.
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(i) There are no legal or governmental proceedings pending to which the
Company is a party or of which any property or assets of the Company
is the subject.
(j) The Company (i) is not in violation of its memorandum and articles of
association, (ii) is not in default in any material respect, and no
event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which
any of its property or assets is subject or (iii) is not in violation
in any respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject.
(k) The Company possesses all material licenses, certificates,
authorizations and permits issued by, and has made all declarations
and filings with, the appropriate state, federal or foreign regulatory
agencies or bodies which are necessary or desirable for the ownership
of its properties or the conduct of its business as described in the
Prospectus, and the Company has not received notification of any
revocation or modification of any such license, authorization or
permit and has no reason to believe that any such license,
certificate, authorization or permit will not be renewed.
(l) The Company (i) does not have any material lending relationship with
any bank or lending affiliate of the Underwriter, and (ii) does not
intend to use any of the proceeds from the sale of the Securities
hereunder to repay any outstanding debt owed to any affiliate of the
Underwriter.
(m) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(n) There is no withholding or other tax, assessment or governmental
charge imposed by the Cayman Islands or any political subdivision
thereof or taxing authority therein on account of the Securities, this
Agreement, or any payments thereon or hereunder.
2. PURCHASE BY THE UNDERWRITER. On the Closing Date for each Series
of Securities, in reliance upon the representations, warranties and agreements
contained herein, and subject to the terms and conditions set forth herein, the
Company agrees to sell to the Underwriter, and the Underwriter agrees to
purchase from the Company, the Securities of such Series at the purchase price
therefor specified in the relevant Prospectus Supplement.
The Company shall not be obligated to deliver any Securities of any
Series except upon payment for all the Securities of such Series to be purchased
as provided in the relevant Prospectus Supplement.
3. DELIVERY OF AND PAYMENT FOR THE SECURITIES. Delivery of and
payment for the Securities of each Series shall be made at the office of
Milbank, Tweed, Xxxxxx & XxXxxx, or at such other place as shall be agreed upon
by the Underwriter and the Company, at 10:00 A.M., New York City time, on the
closing date specified for such Series in the relevant Prospectus Supplement, or
at such other date or time, not later than seven full business days thereafter,
as shall be agreed upon by the Underwriter and the Company (such date and time
being referred to herein as the "CLOSING
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DATE" for such Series). On the Closing Date for each Series, the Company shall
deliver the duly executed and authenticated Securities of such Series in global
form to The Depository Trust Company ("DTC") or to its agent on its behalf
against payment to or upon the order of the Company of the purchase price
therefor by certified or official bank check or checks drawn in New York
Clearinghouse Funds or similar next-day funds. The Underwriter shall instruct
DTC as to the allocation of interests in the Securities of such Series among the
accounts of DTC participants. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of the Underwriter hereunder.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the
Underwriter:
(a) That, if the Effective Time is prior to the execution and delivery of
this Agreement, it will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable
and if consented to by the Underwriter, subparagraph (4)) of Rule
424(b) within the time period prescribed by such Rule and will provide
evidence satisfactory to the Underwriter of such timely filing.
(b) To advise the Underwriter promptly of any proposal to amend or
supplement the registration statement as filed or the related
prospectus or the Registration Statement or the Prospectus or any
Prospectus Supplement and not to effect such amendment or supplement
without the consent of the Underwriter; to file promptly all reports
and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus for so long as the delivery of a prospectus is required in
connection with the offering or sale of any Securities; to advise the
Underwriter promptly of the receipt of any comments from the
Commission and of the effectiveness of the Registration Statement (in
each case if the Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplement to the
Registration Statement or the Prospectus or any Prospectus Supplement,
or of any request by the Commission therefor, and of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose; to advise the Underwriter promptly of any order preventing or
suspending the use of any prospectus relating to the Securities, of
the suspension of the qualification of the Securities for offering or
sale in any jurisdiction and of the initiation or threatening of any
proceeding for any such purpose; and to use best efforts to prevent
the issuance of any stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or
suspending any such qualification and, if any such stop order or order
of suspension is issued, to obtain the lifting thereof at the earliest
possible time.
(c) To furnish promptly to the Underwriter and counsel for the Underwriter
a signed copy of the registration statement as originally filed with
the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith; and to deliver
promptly without charge to the Underwriter such number of the
following documents as the Underwriter may from time to time
reasonably request: (i) conformed copies of the registration
statement as originally filed with the Commission and each amendment
thereto (in each case excluding exhibits other than
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this Agreement, the Standard Terms for Trust Agreements and any
supplements thereto), (ii) each Preliminary Prospectus, the
Prospectus, each Preliminary Prospectus Supplement, each Prospectus
Supplement and any amended or supplemented Prospectus or Prospectus
Supplement, and (iii) any document incorporated by reference in the
Prospectus or any Prospectus Supplement (excluding exhibits thereto);
that the Company consents to the use of the Preliminary Prospectus,
the Prospectus, each Preliminary Prospectus Supplement and each
Prospectus Supplement and any amendment or supplement thereto by the
Underwriter and by all dealers to whom the Securities may be sold,
both in connection with the offering or sale of any Securities
contemplated herein and for such period of time thereafter as delivery
of a prospectus relating to the Securities is required under the
Securities Act; that the Company will provide or cause to be provided
to the Underwriter, a copy of the Report on Form SR filed by the
Company as required by Rule 463 under the Securities Act.
(d) If the delivery of a prospectus is required at any time in connection
with the sale of any Securities and if at such time any events shall
have occurred as a result of which the Prospectus or any Prospectus
Supplement as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus or
Prospectus Supplement is delivered, not misleading, or if for any
other reason it shall be necessary at such time to amend or supplement
the Prospectus or any Prospectus Supplement or to file under the
Exchange Act any document incorporated by reference in the Prospectus
or any Prospectus Supplement in order to comply with the Securities
Act or the Exchange Act, to notify the Underwriter immediately
thereof, and, subject to Section 4(b), to promptly prepare and file
with the Commission, at the Company's expense, an amended Prospectus
or Prospectus Supplement or a supplement to the Prospectus or
Prospectus Supplement which will correct such statement or omission or
effect such compliance, or to file such document for incorporation by
reference into the Prospectus or Prospectus Supplement.
(e) To file promptly with the Commission any amendment to the Registration
Statement, the Prospectus or any Prospectus Supplement that may, in
the judgment of the Company or the Underwriter, be required by the
Securities Act or requested by the Commission or advisable in
connection with the distribution of the Securities.
(f) Prior to filing with the Commission (i) any Preliminary Prospectus or
Preliminary Prospectus Supplement, (ii) any amendment to the
Registration Statement or any Prospectus Supplement, (iii) any
document incorporated by reference in the Prospectus or any Prospectus
Supplement or (iv) any Prospectus or Prospectus Supplement pursuant to
Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Underwriter and counsel for the Underwriter, and not to file any
such document to which the Underwriter shall reasonably object after
having been given reasonable notice of the proposed filing thereof.
(g) As soon as practicable to deliver to the Underwriter an earnings
statement of the Company (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158).
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(h) For so long as any Securities are outstanding, to furnish to the
Underwriter copies of all public reports and all reports and financial
statements furnished by the Company to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder.
(i) Promptly from time to time to take such action as the Underwriter may
reasonably request to qualify the Securities of any Series for
offering and sale under the securities laws of such political
subdivisions of the United States of America and its territories and
possessions as the Underwriter may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Securities of such Series; provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction.
(j) The Company will apply the net proceeds from the sale of Securities of
each Series as set forth under "Use of Proceeds" in the Prospectus and
the relevant Prospectus Supplement.
(k) To apply for the listing of the Securities of each Series on the New
York Stock Exchange and to use all reasonable efforts to complete that
listing, subject only to official notice of issuance, prior to the
Closing Date for such Series.
5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter hereunder are subject to the accuracy, when made and on the Closing
Date for each Series, of the representations and warranties of the Company
contained herein, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder, and to each of the following additional
terms and conditions:
(a) The Prospectus and the Prospectus Supplement with respect to the
relevant Series shall have been timely filed with the Commission in
accordance with Section 4(a) of this Agreement. Prior to the Closing
Date for each Series, no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or
the Prospectus or the relevant Prospectus Supplement or otherwise
shall have been complied with to the reasonable satisfaction of the
Underwriter.
(b) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Securities,
the relevant Trust Agreement, the Registration Statement, the
Prospectus, and the relevant Prospectus Supplement and all other legal
matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to
counsel for the Underwriter, and the Company shall have furnished to
such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
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(c) Xxxxxx & Calder shall have furnished to the Underwriter their written
opinion, as special Cayman Islands counsel to the Company, addressed
to the Underwriter and dated the Closing Date for the relevant Series,
in form and substance reasonably satisfactory to the Underwriter, to
the effect that:
i. The Company has been duly organized and is validly existing as a
limited liability company under the laws of the Cayman Islands
and has all power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged;
ii. The Company has full right, power and authority to execute and
deliver this Agreement and the relevant Trust Agreement and to
perform its obligations hereunder and thereunder; and all
corporate action required to be taken for the due and proper
authorization, execution, delivery and performance of this
Agreement and the relevant Trust Agreement and the consummation
of the transactions contemplated by this Agreement and the
relevant Trust Agreement have been duly and validly taken;
iii. This Agreement has been duly authorized, executed and delivered
by the Company;
iv. The relevant Trust Agreement has been duly authorized, executed
and delivered by the Company;
v. The execution, delivery and performance of this Agreement and the
relevant Trust Agreement by the Company and the consummation of
the transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or to which
any of the property or assets of the Company is subject, nor will
such actions result in any violation of the provisions of the
memorandum and articles of association of the Company or any
statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over
the Company or any of its properties or assets; and no consent,
approval, authorization or order of, or filing or registration
with, any court or governmental agency or body in the Cayman
Islands is required for the execution, delivery and performance
of this Agreement and the relevant Trust Agreement by the Company
and the consummation of the transactions contemplated hereby and
thereby; and
vii. To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Company is a party
or of which any property or assets of the Company is the subject,
and to the best of such counsel's knowledge no such proceedings
are threatened.
(d) The Underwriter shall have received from Milbank, Tweed, Xxxxxx &
XxXxxx, counsel for the Underwriter, their written opinion, addressed
to the Underwriter and
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dated the Closing Date for the relevant Series, in form and substance
reasonably satisfactory to the Underwriter, to the effect that:
i. the Registration Statement was declared effective under the
Securities Act and the relevant Trust Agreement was qualified
under the Trust Indenture Act as of the date and time specified
in such opinion; the Prospectus and the relevant Prospectus
Supplement was filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Rules and Regulations
specified in such opinion on the date specified therein; and no
stop order suspending the effectiveness of the Registration
Statement has been issued;
ii. the Registration Statement and the Prospectus and the relevant
Prospectus Supplement and any further amendments or supplements
to the Registration Statement or the Prospectus or the relevant
Prospectus Supplement (other than any financial statements and
related schedules therein, as to which such counsel need express
no opinion) made by the Company prior to the Closing Date for the
relevant Series comply as to form in all material respects with
the requirements of the Securities Act and the Rules and
Regulations; and the documents incorporated by reference in the
Prospectus and the Relevant Prospectus Supplement (other than any
financial statements and related schedules therein, as to which
such counsel need express no opinion), when they were filed with
the Commission complied as to form in all material respects with
the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder;
iii. such counsel has no reason to believe that the Registration
Statement (or any post-effective amendment thereto), at the time
of its effective date, contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus or the relevant Prospectus
Supplement, including any documents incorporated therein by
reference, contains any untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
and
iv. the Underwriter is entitled to rely on any opinion letter
rendered by such counsel to the Company on the Closing Date as if
such opinion letter were addressed to the Underwriter.
(e) The Company shall have furnished to the Underwriter a certificate,
dated the Closing Date for the relevant Series, of two of its
directors stating that (A) such directors have carefully examined the
Registration Statement, the Prospectus and the Prospectus Supplement
relating to such Series, (B) in their opinion, as of the Effective
Time or (in the case of such Prospectus Supplement) the Closing Date
for such Series, the Registration Statement, the Prospectus and such
Prospectus Supplement, including the documents incorporated therein by
reference, did not include any untrue statement of a material fact and
did not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and since the
Effective Time, no event has occurred which should have been set forth
in a supplement or amendment
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to the Registration Statement or the Prospectus or such Prospectus
Supplement and (C) to the best of his or her knowledge after
reasonable investigation, as of the Closing Date for such Series, the
representations and warranties of the Company in this Agreement are
true and correct, the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the best of
his or her knowledge, are contemplated by the Commission.
(f) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto), there shall not have
occurred any of the following: (i) trading in securities generally on
the New York Stock Exchange, the American Stock Exchange or the over-
the-counter market shall have been suspended or limited, or minimum
prices shall have been established on either of such exchanges or such
market by the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction, or trading in
securities of the Company on any exchange or in the over-the-counter
market shall have been suspended or (ii) a general moratorium on
commercial banking activities shall have been declared by Federal or
New York State authorities or (iii) an outbreak or escalation of
hostilities or a declaration by the United States of a national
emergency or war or such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Underwriter,
impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities of the relevant Series on the terms and
in the manner contemplated in the Prospectus and the relevant
Prospectus Supplement.
(g) The New York Stock Exchange shall have approved the Securities of the
relevant Series for listing, subject only to official notice of
issuance.
(h) As of the Closing Date for the relevant Series, the Securities of such
Series will carry the rating specified in the relevant Prospectus
Supplement (but in any event not lower than (i) "BBB-" from Xxxxx'x
Investors Service, Inc. or (ii) any equivalent rating from another
nationally recognized statistical rating organization).
(i) On or before the Closing Date for a Series, the Underwriter and
counsel for the Underwriter shall have received such further
certificates, documents or other information as they may have
reasonably requested from the Company.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter.
6. TERMINATION. The obligations of the Underwriter hereunder may be
terminated by the Underwriter, in its absolute discretion, by notice given to
and received by the Company prior to delivery of and payment for Securities if,
prior to that time, any of the events described in Section 5(f) shall have
occurred.
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7. [INTENTIONALLY OMITTED].
8. REIMBURSEMENT OF UNDERWRITER'S EXPENSES. If (a) notice shall have been
given pursuant to Section 6 preventing this Agreement from becoming effective,
(b) the Company shall fail to tender Securities for delivery to the Underwriter
for any reason not permitted under this Agreement or (c) the Underwriter shall
decline to purchase Securities for any reason permitted under this Agreement,
the Company shall reimburse the Underwriter for the fees and expenses of its
counsel and for such other out-of-pocket expenses as shall have been reasonably
incurred by the Underwriter in connection with this Agreement and the proposed
purchase of Securities, and upon demand the Company shall pay the full amount
thereof to the Underwriter.
9. INDEMNIFICATION. (a) The Company shall indemnify and hold harmless
the Underwriter and each person, if any, who controls the Underwriter within the
meaning of the Securities Act or the Exchange Act (collectively referred to for
the purposes of this Section 9 and Section 10 as "the Underwriter") against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Underwriter may become subject, under the Securities Act,
the Exchange Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
Preliminary Prospectus Supplement, the Registration Statement, the Prospectus or
any Prospectus Supplement or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse the Underwriter for any legal or other expenses reasonably
incurred by the Underwriter in connection with investigating or preparing to
defend or defending against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any Preliminary Prospectus, any
Preliminary Prospectus Supplement, the Registration Statement, the Prospectus or
any Prospectus Supplement or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by the
Underwriter specifically for use therein; and provided, further, that the
Company will not be liable to the Underwriter or any person controlling the
Underwriter with respect to any such untrue statement or omission made in any
Preliminary Prospectus that is corrected in the Prospectus (or any amendment or
supplement thereto) if the person asserting any loss, claim, damage or liability
purchased Securities from the Underwriter but was not sent or given a copy of
the Prospectus (as amended or supplemented) by the Underwriter, other than the
documents incorporated by reference therein, at or prior to the written
confirmation of the sale of such Securities to such person in any case where
such delivery of the Prospectus (as amended or supplemented) is required by the
Securities Act and the untrue statement or alleged untrue statement of a
material fact, or the omission or alleged omission to state a material fact,
that is found to be or is alleged to be the basis of liability in such
Preliminary Prospectus was corrected in the Prospectus as amended or
supplemented and if the Underwriter would not have been liable had a copy of
such Prospectus been so sent or given by the Underwriter, unless such failure to
deliver the Prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 4(c).
(b) The Underwriter shall indemnify and hold harmless the Company, each of
its directors and each person, if any, who controls the Company within the
meaning of the Securities Act (collectively referred to for the purposes of this
Section 9 and Section 10 as "the Company"), against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
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Company may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of or is based upon (i)
any untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any Preliminary Prospectus Supplement, the
Registration Statement, the Prospectus or any Prospectus Supplement or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by the Underwriter specifically for use therein, and shall
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or preparing to defend or defending
against or appearing as third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 9 unless and except to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and, provided, further,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 9. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the 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 one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 9 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by the Underwriter in the
case of paragraph (a) of this Section 8, representing the indemnified parties
under such paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 9(a) and 9(b), shall
use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold
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harmless any indemnified party from and against any loss or liability by reason
of such settlement or judgment.
The obligations of the Company and the Underwriter in this Section 9 and in
Section 10 are in addition to any other liability which the Company or the
Underwriter, as the case may be, may otherwise have.
10. CONTRIBUTION. If the indemnification provided for in Section 9 is
unavailable or insufficient to hold harmless an indemnified party under Section
9(a) or (b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriter on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriter on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriter on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Securities purchased under this
Agreement (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriter with respect
to the Securities purchased under this Agreement, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriter on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriter agree that it
would not be just and equitable if contributions pursuant to this Section 10
were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 10 shall be deemed to include, for purposes of
this Section 10, 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 this Section 10, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public less the amount of any damages which the
Underwriter has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure
to the benefit of and be binding upon the Underwriter, the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriter, the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 9 and 10
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
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12. EXPENSES. The Company agrees with the Underwriter to pay (a) all fees
and expenses of the Trustee; (b) all other costs; and expenses incident to the
performance of the obligations of the Company under this Agreement; and (c) any
meetings with prospective investors in the Securities (other than as shall have
been specifically approved by the Underwriter to be paid for by the
Underwriter).
13. SURVIVAL. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Underwriter
contained in this Agreement, or made by them pursuant to this Agreement, shall
survive the delivery of and payment for the Securities of any Series and shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any of them or
any person controlling any of them.
14. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent by mail, telex or
facsimile transmission to Citicorp Securities, Inc., 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xx. Xxxxxx Xxxxxx, with a copy to
Citibank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx X. Xxxxxxxxxxx, Esq.; and
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement.
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
15. DEFINITIONS OF CERTAIN TERMS. For purposes of this Agreement,
"BUSINESS DAY" means any day on which the New York Stock Exchange, Inc. is open
for trading.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
CONFLICTS OF LAWS PRINCIPLES.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
19. WITHHOLDING TAXES. All amounts payable by the Company in respect of
this Agreement shall be paid in U.S. dollars without set-off or counterclaim and
free and clear of, and without deduction or withholding for or on account of,
any present or future tax, assessment or other governmental charge or any
interest or penalty thereon (collectively, "TAX") imposed, levied, collected,
assessed, or required to be deducted, withheld or paid by or for the account of
the Cayman Islands or any taxing authority or political subdivision thereof or
therein. If any such Tax is required by law to be withheld or deducted from any
such payment, the Company shall pay the full amount of such Tax and pay such
additional amounts as may be necessary to ensure that the net amount actually
received
-16-
by the Underwriter in respect of such payment is equal to the amount the
Underwriter would have received had no such Tax been withheld or deducted from
such payment.
20. SERVICE OF PROCESS. The Company, for the benefit of the Underwriter
and the holders from time to time of the Securities, hereby irrevocably agrees
that service of process in the manner provided for notices to the Company under
Section 10.04 of the Standard Terms and Conditions for Trust Agreements shall be
deemed in every respect effective service of process upon the Company in any
suit, action or proceeding relating to this Agreement or the Securities.
Nothing herein contained shall, however, in any manner limit the rights of the
Underwriter or the holders of any Securities to serve process in any other
manner permitted by applicable law or to obtain jurisdiction over the Company or
to bring suits, actions or proceedings against the Company in such other
jurisdictions, and in such manner, as may be permitted by applicable law.
21. WAIVER OF IMMUNITY. The Company irrevocably waives, to the fullest
extent permitted by applicable law, with respect to itself and its revenues and
assets (irrespective of their use or intended use), all immunity on the grounds
of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction or order for specific performance or
for recovery of property, (iv) attachment of the Company's assets (whether
before or after judgment) and (v) execution or enforcement of any judgment to
which the Company or its revenues or assets might otherwise be entitled in any
suit, action or proceeding in the courts of any jurisdiction and irrevocably
agrees, to the extent permitted by applicable law, that the Company will not
claim any such immunity in any suit, action or proceeding.
22. CONSENT TO JURISDICTION. The Company irrevocably and unconditionally
submits to the exclusive jurisdiction of any state or federal court sitting in
the City of New York, New York over any suit, action or proceeding arising out
of or relating to this Agreement or the Securities. The Company irrevocably and
unconditionally waives any objection to the laying of venue of any such suit,
action or proceeding brought in any such court and any claim that any such suit,
action or proceeding has been brought in an inconvenient forum. The Company
agrees that a final judgment in any such suit, action or proceeding brought in
any such court shall be conclusive and binding upon the Company and may be
enforced in any other courts to whose jurisdiction the Company is or may be
subject, by suit upon judgment.
23. NONPETITION COVENANT; LIMITED RECOURSE. Notwithstanding any prior
termination of all Trust Agreements with respect to all previously issued Series
of Securities, the Underwriter agrees that it shall not, until the date which is
one year and one day after such termination, acquiesce, petition or otherwise
invoke or cause the Company to invoke the process of any body, authority, agency
or other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government for the purpose of
commencing or sustaining a case by or against the Company under a bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Company or all
or any part of the property or assets of the Company or ordering the winding up
or liquidation of the affairs of the Company. In addition, the Underwriter
agrees that each conveyance of any Deposited Assets (as defined in the
Prospectus) by the Company to the Trustee be treated as a absolute sale and
transfer of the Deposited Assets by the Company and that, accordingly, the
Underwriter will not have any recourse to any Deposited Assets unless otherwise
expressly provided with respect to a Series of Securities in the relevant
Prospectus Supplement.
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If the foregoing is in accordance with your understanding of the agreement
between the Company and the Underwriter, kindly indicate your acceptance in the
space provided for that purpose below.
Very truly yours,
ELMWOOD FUNDING LIMITED
By ______________________
Name:
Title:
Accepted:
CITICORP SECURITIES, INC.
By _______________________
Authorized Signatory
