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EXHIBIT 1.1
DISCOVER CARD MASTER TRUST I
Credit Card Pass-Through Certificates
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Underwriting Agreement
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(Standard Terms)
June 9, 2000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Greenwood Trust Company ("Greenwood"), as originator of Discover Card
Master Trust I (the "Trust"), proposes, subject to the terms and conditions
stated herein, to cause to be issued and sold from time to time Credit Card
Pass-Through Certificates (the "Certificates") in one or more series (each, a
"Series"). The Certificates of each Series will consist of one or more Classes
(each, a "Class") of Certificates of such Series. Each Certificate will evidence
a fractional, undivided percentage interest or beneficial interest in the Trust.
The Certificates will be issued by the Trust pursuant to a Pooling and Servicing
Agreement, dated as of October 1, 1993, as amended, and as supplemented by a
Series Supplement relating to the specific Series of Certificates issued
thereunder (the Pooling and Servicing Agreement, as so supplemented, the
"Pooling and Servicing Agreement"), between Greenwood as Master Servicer,
Servicer and Seller and U.S. Bank National Association (formerly First Bank
National Association, successor trustee to Bank of America Illinois, formerly
Continental Bank, National Association), as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
Each offering of each Class of each Series of Certificates to which this
Agreement applies (the "Securities") made pursuant to the Registration Statement
(as defined herein) will be
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made through you or through you and other underwriters for whom you are acting
as representatives or through an underwriting syndicate managed by you. Whenever
Greenwood determines to make such an offering of Securities to which this
Agreement shall apply, Greenwood and one or more Underwriters (as defined
herein) will enter into an agreement (the "Terms Agreement") providing for the
sale of the Securities to, and the purchase and offering thereof by, (i) you,
(ii) you and such other underwriters who execute the Terms Agreement and agree
thereby to become obligated to purchase the Securities from Greenwood, or (iii)
you and such other underwriters, if any, selected by you as have authorized you
to enter into such Terms Agreement on their behalf (in each case, the
"Underwriters"). Such Terms Agreement shall specify the initial principal amount
of the Securities to be issued and their terms not otherwise specified in this
Agreement, the price at which such Securities are to be purchased by the
Underwriters from Greenwood, the aggregate amount of Securities to be purchased
by you and any other Underwriter that is a party to such Terms Agreement and the
initial public offering price or the method by which the price at which such
Securities are to be sold will be determined. The Terms Agreement ("Terms
Agreement"), which shall be substantially in the form attached hereto, may take
the form of an exchange of any standard form of written communication between or
among the Underwriters and Greenwood. Each such offering of the Securities for
which a Terms Agreement is entered into will be governed by this Agreement, as
supplemented by the applicable Terms Agreement, and this Agreement and such
Terms Agreement shall inure to the benefit of and be binding upon the
Underwriters participating in the offering of such Securities.
1. Greenwood represents and warrants to, and agrees with you, as of the
date hereof, and to each Underwriter named in the Terms Agreement as of the date
thereof, that:
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(a) A registration statement on Form S-3 (Registration Statement No.
333-37066) including a prospectus and such amendments thereto as may have been
required to the date hereof, relating to the Certificates and the offering
thereof from time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "Act"), in the form heretofore delivered to you has
been filed with the Securities and Exchange Commission (the "Commission") (which
may have included one or more preliminary prospectuses and prospectus
supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule
430 of the Act) and such registration statement, as amended, has become
effective; such registration statement, as amended, and the prospectus and
prospectus supplement relating to the sale of the Securities offered thereby
constituting a part thereof, as from time to time amended or supplemented
(including any prospectus and prospectus supplement filed with the Commission
pursuant to Rule 424(b) of the Act) are respectively referred to herein as the
"Registration Statement," the "Basic Prospectus" and the "Prospectus Supplement"
and the Basic Prospectus together with the Prospectus Supplement relating to the
Securities is hereinafter referred to as the "Prospectus"; the conditions of
Rule 415 under the Act have been satisfied with respect to the Registration
Statement; and no other amendment to the Registration Statement will be filed
which shall be reasonably disapproved by you promptly after reasonable notice
thereof.
(b) There is no request by the Commission for any further amendment
of the Registration Statement or the Prospectus or for any additional
information; the Commission has not issued any stop order suspending the
effectiveness of the Registration Statement and Greenwood is not aware of any
proceeding for that purpose having been instituted or threatened; and there has
been no notification with respect to the suspension of the qualification for
sale of the Certificates for sale in any jurisdiction or any proceeding for such
purpose having been instituted or threatened.
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(c) As of the date of the Terms Agreement, when the Registration
Statement became effective, when the Prospectus Supplement is first filed
pursuant to Rule 424(b) under the Act, when any other amendment to the
Registration Statement becomes effective, and when any supplement to the
Prospectus Supplement is filed with the Commission, and at the Time of Delivery
(as defined in Section 4), the Registration Statement and the Prospectus (i)
conformed, and any amendments or supplements thereto will conform, in all
material respects to the requirements of the Act and the rules and regulations
of the Commission thereunder and (ii) 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; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
Greenwood by an Underwriter through you expressly for use therein.
(d) Upon payment therefor as provided herein and in the Terms
Agreement, the Securities will have been duly and validly authorized and
(assuming their due authentication by the Trustee) will have been duly and
validly issued and will conform in all material respects to the description
thereof in the Prospectus and will be entitled to the benefits of the Pooling
and Servicing Agreement.
(e) The issue and sale of the Securities and the compliance by
Greenwood with all of the provisions of the Securities, the Pooling and
Servicing Agreement, this Agreement and the Terms Agreement have been or will
have been duly authorized by Greenwood by all necessary corporate action; and
will not conflict with or result in any breach which would constitute a material
default under, or, except as contemplated by the Pooling and Servicing
Agreement, result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of Greenwood or NOVUS Credit
Services Inc. ("NOVUS"),
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material to Greenwood and NOVUS (whether or not consolidated) considered as a
whole, pursuant to the terms of, any indenture, loan agreement or other
agreement or instrument for borrowed money to which Greenwood or NOVUS is a
party or by which Greenwood or NOVUS may be bound or to which any of the
property or assets of Greenwood or NOVUS, material to Greenwood and NOVUS
(whether or not consolidated) considered as a whole, is subject, nor will such
action result in any material violation of the provisions of the Certificate of
Incorporation or By-Laws of Greenwood or, to the best of Greenwood's knowledge,
any statute or any order, rule or regulation applicable to Greenwood of any
court or any Federal, State or other regulatory authority or other governmental
body having jurisdiction over Greenwood, and no consent, approval, authorization
or other order of, or filing with, any court or any such regulatory authority or
other governmental body is required for the issue and sale of the Securities
except as may be required under the Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and securities laws of the various states and
other jurisdictions which are applicable to the issue and sale of the Securities
and except for the filing of any financing or continuation statement required to
perfect or continue the Trust's interest in the Receivables.
(f) The Receivables conveyed by Greenwood to the Trust under the
Pooling and Servicing Agreement had an aggregate outstanding balance determined
as of the date stated in the Terms Agreement of not less than the amount set
forth in the Terms Agreement; and
(g) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the Trust is not required to be registered under the
Investment Company Act of 1940, as amended (the "Investment Company Act").
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2. Subject to the terms and conditions herein set forth, Greenwood agrees
to cause to be issued and sold to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from Greenwood, at
the purchase price specified in the Terms Agreement, the principal amount of
Securities set forth in the Terms Agreement.
3. (a) From time to time, after the Registration Statement becomes
effective, the several Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in the Prospectus.
(b) Each Underwriter severally represents and agrees that it will not
offer or sell or deliver any of the Securities in any jurisdiction except under
circumstances that will result in compliance with the applicable laws thereof,
and without limiting the foregoing, each Underwriter severally represents and
agrees that (i) it has complied and will comply with all applicable provisions
of the Financial Services ▇▇▇ ▇▇▇▇ and the Public Offers of Securities
Regulations 1995 with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom; (ii) it has only
issued or passed on and will only issue or pass on in the United Kingdom any
document received by it in connection with the issue of the Securities to a
person who is of a kind described in Article 11(3) of the Financial Services ▇▇▇
▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996 or who is a person to
whom the document may otherwise lawfully be issued or passed on; (iii) if it is
an authorized person under Chapter III of Part I of the Financial Services ▇▇▇
▇▇▇▇, it has only promoted and will only promote (as that term is defined in
Regulation 1.02 of the Financial Services (Promotion of Unregulated Schemes)
Regulations 1991) to any person in the United Kingdom the scheme described in
the Prospectus Supplement if that person is of a kind described either in
Section 76(2) of the Financial Services ▇▇▇ ▇▇▇▇ or in Regulation 1.04 of the
Financial Services (Promotion of Unregulated Schemes) Regulation 1991; and (iv)
it is a person of a kind described
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in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements)
(Exemptions) Order 1996.
(c) Each Underwriter, severally, represents that it will not, at any
time that such Underwriter is acting as an "underwriter" (as defined in Section
2(11) of the Act) with respect to the Securities, transfer, deposit or otherwise
convey any Securities into a trust or other type of special purpose vehicle that
issues securities or other instruments backed in whole or in part by, or that
represents interests in, such Securities without the prior written consent of
Greenwood.
4. Securities to be purchased by each Underwriter hereunder and under the
Terms Agreement shall be delivered by or on behalf of Greenwood to you for the
account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price thereof in immediately available funds. Unless
otherwise specified in the Terms Agreement, such delivery shall occur at the
office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Chicago, Illinois or such other place as you and
Greenwood may agree upon in writing. The time and date of such delivery shall be
set forth in the Terms Agreement or at such other time and date as you and
Greenwood may agree upon in writing, such time and date being herein called the
"Time of Delivery." Unless otherwise specified in the Terms Agreement, the
Securities shall be represented by definitive certificates, registered in the
name of Cede & Co., as nominee for The Depository Trust Company. Such definitive
certificates will be made available for inspection at least twenty-four hours
prior to the Time of Delivery at the office of the Trustee, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
5. Greenwood agrees with each of the Underwriters:
(a) Immediately following the execution of each Terms Agreement,
Greenwood will prepare a Prospectus Supplement setting forth the amount of
Securities covered
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thereby and the terms thereof not otherwise specified in the Basic Prospectus,
the price at which such Securities are to be purchased by the Underwriters from
Greenwood, either the initial public offering price or the method by which the
price at which such Securities are to be sold will be determined, the selling
concessions and allowances, if any, and such other information as Greenwood
deems appropriate in connection with the offering of such Securities, and
Greenwood will not make any further amendment or any supplement to the
Registration Statement or Prospectus without first having furnished you with a
copy of the proposed form thereof and given you a reasonable opportunity to
review the same; to advise you promptly after it receives notice of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish you with copies thereof; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of the Prospectus, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of such Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may reasonably 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, provided that in connection therewith Greenwood
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shall not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in such
quantities as you may from time to time reasonably request, and if at any time
the delivery of a Prospectus is required by law in connection with the offering
or sale of the Securities, and if at such time any event shall have occurred as
a result of which the Prospectus 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, not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus in order to comply with
the Act, to notify you and to prepare and furnish without charge to each
Underwriter and to any dealer in the Securities as many copies as you may from
time to time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance and in case any Underwriter is required to deliver a Prospectus in
connection with sales of any Securities at any time nine months or more after
the effective date of the Registration Statement, upon your request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter as many
copies as you may reasonably request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To cause the Trust to make generally available to holders of the
Securities, in accordance with Rule 158 under the Act or otherwise, as soon as
practicable, but in any event not later than forty-five days after the end of
the fourth full fiscal quarter (ninety days in the case of the last fiscal
quarter in any fiscal year) following the fiscal quarter ending after the
effective date of the Registration Statement, an earning statement of the Trust
(which need not be
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audited) complying with Section 11(a) of the Act and covering a period of at
least twelve consecutive months beginning after the effective date of such
Registration Statement;
(e) To pay or cause to be paid all expenses incident to the
performance of its obligations hereunder, including the cost of all
qualifications of the Securities under state securities laws (including
reasonable fees of counsel to the Underwriters in connection with such
qualifications and in connection with legal investment surveys) and the cost of
printing this Agreement and any blue sky and legal investment memoranda.
Greenwood agrees with each of the Underwriters during the period beginning
from the date of the Terms Agreement and continuing to and including the earlier
of (i) the termination of trading restrictions on the Securities, of which
termination you agree to give Greenwood prompt notice confirmed in writing, and
(ii) the Time of Delivery, not to offer, sell, contract to sell or otherwise
dispose of any securities of Greenwood or any other affiliate thereof or any
other trust for which Greenwood or any other affiliate thereof is depositor,
which represent participation interests in Discover Card receivables, without
your prior written consent, which consent shall not be unreasonably withheld.
6. The obligations of the several Underwriters hereunder shall be
subject, in their discretion, to the condition that all representations and
warranties and other statements of Greenwood herein are, at and as of the Time
of Delivery, true and correct, the condition that Greenwood shall have performed
all of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) All actions required to be taken and all filings required to be
made by Greenwood under the Act prior to the Time of Delivery for the Securities
shall have been duly taken or made; and prior to the applicable Time of
Delivery, no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
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proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Commission's satisfaction.
(b) All corporate proceedings and related matters in connection with
the organization of Greenwood, the validity of the Pooling and Servicing
Agreement and the registration, authorization, issue, sale and delivery of the
Securities shall have been satisfactory to counsel to the Underwriters, and such
counsel shall have been furnished with such papers and information as they may
reasonably have requested to enable them to pass upon the matters referred to in
this subdivision (b).
(c) Counsel to Greenwood (which for purposes of the opinions
described in clauses (i)-(iii) and the opinions as to the due authorization,
execution and delivery of the Pooling and Servicing Agreement and the due
authorization, execution, issuance and delivery of the Securities in clause (iv)
may be in-house counsel to Greenwood) shall have furnished to you their written
opinion, dated the Time of Delivery, in form and substance satisfactory to you
in your reasonable judgment, to the effect that:
(i) Greenwood is validly existing as a banking corporation in good
standing under the laws of the State of Delaware;
(ii) This Agreement and the Terms Agreement have been duly
authorized, executed and delivered on the part of Greenwood;
(iii) The compliance by Greenwood with all of the provisions of this
Agreement, the Terms Agreement and the Pooling and Servicing Agreement will not
conflict with or result in any breach which would constitute a material default
under, or, except to the extent contemplated in the Pooling and Servicing
Agreement, result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of Greenwood or NOVUS,
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material to Greenwood and NOVUS (whether or not consolidated) considered as a
whole, pursuant to the terms of, any indenture, loan agreement or other
agreement or instrument for borrowed money known to such counsel to which
Greenwood or NOVUS is a party or by which Greenwood or NOVUS may be bound or to
which any of the property or assets of Greenwood or NOVUS, material to Greenwood
and NOVUS (whether or not consolidated) considered as a whole, is subject, nor
will such action result in any material violation of the provisions of the
Certificate of Incorporation or the By-Laws of Greenwood, or to the best
knowledge of such counsel, any statute or any order, rule or regulation
applicable to Greenwood of any court or any Federal, State or other regulatory
authority or other governmental body having jurisdiction over Greenwood other
than the Act, the Exchange Act, the Trust Indenture Act and the Investment
Company Act and the rules and regulations under each of such acts and other than
the securities laws of the various states or other jurisdictions which are
applicable to the issue and sale of the Securities and other state laws relating
to the perfection of security interests; and, to the best knowledge of such
counsel, no consent, approval, authorization or other order of, or filing with,
any court or any such regulatory authority or other governmental body is
required for the issue and sale of the Securities except as may be required
under the Act, the Exchange Act, the Trust Indenture Act and the Investment
Company Act and securities laws of the various states or other jurisdictions
which are applicable to the issue and sale of the Securities and except for the
filing of any financing or continuation statement required to perfect or
continue the Trust's interest in the Receivables;
(iv) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered on the part of Greenwood and as to Greenwood is a valid
and binding instrument enforceable in accordance with its terms except as the
foregoing may be limited by insolvency, bankruptcy, reorganization, moratorium
or other laws relating to or affecting the
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enforcement of creditors' rights or by general equity principles; the Pooling
and Servicing Agreement is not required to be qualified under the Trust
Indenture Act; the Trust is not required to be registered under the Investment
Company Act; and the Securities have been duly authorized and (assuming their
due authentication by the Trustee) have been duly executed, issued and delivered
and constitute valid and binding obligations of the Trust in accordance with
their terms, entitled to the benefits of the Pooling and Servicing Agreement,
except as the foregoing may be limited by insolvency, bankruptcy, reorganization
or other laws relating to or affecting the enforcement of creditors' rights or
by general equity principles; and
(v) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by Greenwood prior to the Time of
Delivery (other than financial, statistical and accounting data therein as to
which such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules and regulations
thereunder.
In rendering such opinion, counsel may rely to the extent they deem
appropriate upon certificates of officers or other executives of Greenwood and
their affiliates and of public officials as to factual matters and upon opinions
of other counsel. Such counsel shall also state that nothing has come to their
attention which has caused them to believe that the Registration Statement as of
its effective date or the Prospectus as of the date thereof and as of the
applicable Time of Delivery (other than financial, statistical and accounting
data therein, as to which such counsel need express no belief) contains an
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading.
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(d) At the Time of Delivery, Deloitte & Touche LLP shall have
furnished to you a letter or letters, dated the respective date of delivery
thereof, in form and substance satisfactory to you;
(e) (i) Greenwood and its affiliates (whether or not consolidated)
considered as a whole, shall not have sustained, since the date of the latest
audited financial statement previously delivered to you, any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree and (ii) since the date of the Terms
Agreement there shall not have been any material change in the capital stock
accounts or long-term debt of Greenwood or any material adverse change in the
general affairs, financial position, shareholders' equity or results of
operations of Greenwood and its affiliates (whether or not consolidated)
considered as a whole, the effect of which in any such case described in clause
(i) or (ii), in your judgment renders it inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(f) Subsequent to the date of the Terms Agreement none of (i) the
United States shall have become engaged in the outbreak or escalation of
hostilities involving the United States or there has been a declaration by the
United States of a national emergency or a declaration of war, (ii) a banking
moratorium shall have been declared by either Federal or New York State
authorities, or (iii) trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have been
established by such Exchange, any of which events, in your judgment, renders it
inadvisable to proceed with the public offering or the delivery of the
Securities;
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(g) At or prior to the Time of Delivery, the Certificates shall be
assigned the ratings by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and by
Standard & Poor's Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc.
("Standard & Poor's") set forth in the Terms Agreement;
(h) Greenwood shall have furnished or caused to be furnished to you
at the Time of Delivery certificates satisfactory to you as to the accuracy at
and as of such Time of Delivery of the representations and warranties of
Greenwood herein and as to the performance by Greenwood of all its obligations
hereunder to be performed at or prior to the Time of Delivery and Greenwood
shall have also furnished you similar certificates satisfactory to you as to the
matters set forth in subdivision (a) of this Section 6.
(i) The Underwriters shall be entitled to rely on the opinions of an
outside counsel acceptable to the Underwriters as special counsel to Greenwood
as delivered to Moody's and Standard & Poor's in connection with the rating of
the Securities.
7. (a) Greenwood will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act 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 in any Preliminary Prospectus, the Registration
Statement, or the Prospectus, or any amendment or supplement thereto furnished
by Greenwood, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or (in the case
of the Registration Statement or the Prospectus, or any amendment or supplement
thereto) necessary to make the statements therein not misleading or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; and will reimburse each Underwriter for any legal or
other expenses
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reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim; provided, however, that Greenwood 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 in any Preliminary Prospectus,
the Registration Statement or the Prospectus or any such amendment or supplement
in reliance upon and in conformity with written information furnished to
Greenwood by any Underwriter through you expressly for use therein; and
provided, further, that Greenwood shall not be liable to any Underwriter or any
person controlling such Underwriter under the indemnity agreement in this
subdivision (a) with respect to the Preliminary Prospectus or the Prospectus, as
the case may be, to the extent that any such loss, claim, damage or liability of
such Underwriter or controlling person results solely from the fact that such
Underwriter sold Securities to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the Prospectus or
of the Prospectus as then amended or supplemented if Greenwood had previously
furnished copies thereof to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless Greenwood
against any losses, claims, damages or liabilities to which Greenwood may become
subject, under the Act 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 in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or (in the case of the Registration Statement or the Prospectus, or any
amendment or supplement thereto) necessary to make the statements therein not
misleading or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading
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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 in any
Preliminary Prospectus, the Registration Statement, or the Prospectus, or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to Greenwood by such Underwriter through you expressly for
use therein; and will reimburse Greenwood for any legal or other expenses
reasonably incurred by Greenwood in connection with investigating or defending
any such action or claim.
(c) Within a reasonable period after receipt by an indemnified party
under subdivision (a) or (b) above of notice of the commencement of any action
with respect to which indemnification is sought under such subdivision or
contribution may be sought under subdivision (d) below, such indemnified party
shall notify the indemnifying party in writing of the commencement thereof. In
case any such action shall be brought against any indemnified party, the
indemnifying party shall be entitled to participate therein, and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under subdivision (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) (i) in such
proportion as is
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appropriate to reflect the relative benefits received by Greenwood on the one
hand and the Underwriters 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
Greenwood on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by Greenwood on the one
hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by Greenwood bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth on the cover
page of the Prospectus Supplement. 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 Greenwood on the one hand and the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission of
Greenwood on the one hand and the Underwriters, directly or through you, on the
other hand. With respect to any Underwriter, such relative fault shall also be
determined by reference to the extent (if any) to which such losses, claims,
damages or liabilities (or actions in respect thereof) with respect to any
Preliminary Prospectus result from the fact that such Underwriter sold the
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or of the Prospectus
as then amended or supplemented if Greenwood had previously furnished copies
thereof to such Underwriter. Greenwood and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this subdivision (d) were
determined by per capita
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allocation among the indemnifying parties (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
subdivision (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subdivision (d) shall be deemed to include 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 subdivision (d), 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 exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters in this subdivision (d)
to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of Greenwood under this Section 7 shall be in
addition to any liability which Greenwood may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of Greenwood and to each
person, if any, who controls Greenwood within the meaning of the Act.
8. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder and under the Terms
Agreement, you may
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in your discretion arrange for yourselves or another party or other parties to
purchase such Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter you do not arrange for the purchase
of such Securities, then Greenwood shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties to
purchase such Securities on such terms. In the event that, within the respective
prescribed periods, you notify Greenwood that you have so arranged for the
purchase of such Securities, or Greenwood notifies you that it has so arranged
for the purchase of such Securities, you or Greenwood shall have the right to
postpone the Time of Delivery for such Securities for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus as amended or supplemented, or in
any other documents or arrangements, and Greenwood agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by you and Greenwood
as provided in subdivision (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then Greenwood shall have the
right to require each non-defaulting Underwriter to purchase the principal
amount of Securities which such Underwriter agreed to purchase hereunder and
under the Terms Agreement and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of the
Securities which such Underwriter agreed to purchase hereunder and under the
Terms Agreement) of the
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Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by you and Greenwood
as provided in subdivision (a) above, the aggregate principal amount of
Securities which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all the Securities, as referred to in subdivision (b) above,
or if Greenwood shall not exercise the right described in subdivision (b) above
to require non-defaulting Underwriters to purchase Securities of a defaulting
Underwriter or Underwriters, then the Terms Agreement relating to the Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or Greenwood, except for the expenses to be borne by Greenwood as
provided in Section 5(e) hereof and the indemnity and contribution agreements in
Section 7 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
9. The respective indemnities, agreements, representations, warranties
and other statements of Greenwood and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or Greenwood or
any officer or director or controlling person of Greenwood, and shall survive
delivery of and payment for the Securities. Anything herein to the contrary
notwithstanding, the indemnity agreement of Greenwood in subdivisions (a) and
(e) of Section 7 hereof, the representations and warranties in subdivisions (b)
and (c) of Section 1 hereof and any representation or warranty as to the
accuracy of the Registration Statement or the Prospectus as amended or
supplemented contained in any certificate furnished by Greenwood pursuant to
subdivision (i) of Section 6
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hereof, insofar as they may constitute a basis for indemnification for
liabilities (other than payment by Greenwood of expenses incurred or paid in the
successful defense of any action, suit or proceeding) arising under the Act,
shall not extend to the extent of any interest therein of an Underwriter or a
controlling person of an Underwriter if a director, officer or controlling
person of Greenwood when the Registration Statement becomes effective or a
person who, with his consent, is named in the Registration Statement as being
about to become a director of Greenwood, is a controlling person of such
Underwriter, except in each case to the extent that an interest of such
character shall have been determined by a court of appropriate jurisdiction as
not against public policy as expressed in the Act. Unless in the opinion of
counsel for Greenwood the matter has been settled by controlling precedent,
Greenwood will, if a claim for such indemnification is asserted, submit to a
court of appropriate jurisdiction the question whether such interest is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
10. If the Terms Agreement shall be terminated pursuant to Section 8
hereof, Greenwood shall not then be under any liability to any Underwriter with
respect to the Securities subject to such Terms Agreement except as provided in
Section 5(e) and Section 7 hereof; but, if for any other reason the Securities
are not delivered by or on behalf of Greenwood as provided herein, Greenwood
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Securities, but Greenwood shall not then be under any
further liability to any Underwriter with respect to the Securities except as
provided in Section 5(e) and Section 7 hereof.
11. In all dealings hereunder, you shall act on behalf of each of the
Underwriters and the parties hereto shall be entitled to act and rely upon any
statement, request,
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notice or agreement on behalf of any Underwriter made or given by you, or by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on behalf of you.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing and if to the
Underwriters shall be sufficient in all respects, if delivered or sent by
registered mail to you jointly in care of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Securitized Products Group -
Finance and if to Greenwood shall be sufficient in all respects if delivered or
sent by registered mail to Greenwood at ▇▇ ▇▇▇▇'▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: President.
12. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, Greenwood and, to the extent provided in Section 7 and
Section 9 hereof, the officers and directors of Greenwood and each person who
controls Greenwood or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
13. Time shall be of the essence of this Agreement.
14. This Agreement shall be construed in accordance with the laws of the
State of New York. "Business day" as used herein shall mean any day when the
Commission's office in Washington, D.C. is normally open for business.
15. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
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If the foregoing is in accordance with your under-standing, please sign and
return two counterparts hereof and upon the acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters and Greenwood.
Very truly yours,
GREENWOOD TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Accepted as of the date hereof:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
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