EXHIBIT 1.1
BNP PARIBAS MORTGAGE ABS LLC
Mortgage Pass-Through Certificates, Series 200_-__
Approximate Initial
Underwritten Certificate
Class Certificate Principal Balance Interest Rate
----- ----------------------------- -------------
I-A $[ ] Adjustable Rate
I-M-1 $[ ] Adjustable Rate
I-M-2 $[ ] Adjustable Rate
I-M-3 $[ ] Adjustable Rate
UNDERWRITING AGREEMENT
____________, 200_
[Underwriter]
_______________
_______________
Ladies and Gentlemen:
BNP Paribas Mortgage ABS LLC, a Delaware limited liability company (the
"Company"), proposes to sell to you (also referred to herein as the
"Underwriter") Mortgage Pass-Through Certificates, Series 200_-__, Class A and
Class R Certificates other than a de minimis portion thereof (collectively, the
"Certificates"), having the aggregate principal amounts and Pass-Through Rates
set forth above. The Certificates , together with the Class M and Class B
Certificates of the same series, will evidence the entire beneficial interest in
the Trust Fund (as defined in the Pooling and Servicing Agreement referred to
below) consisting primarily of a pool (the "Pool") of conventional, fixed-rate,
one- to four-family residential mortgage loans (the "Mortgage Loans") as
described in the Prospectus Supplement (as hereinafter defined) to be sold by
the Company. A de minimis portion of the Class R Certificates will not be sold
hereunder and will be held by the Trustee.
The Certificates will be issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of __________,
200_ (the "Cut-off Date") among the Company, as seller, ____________, as master
servicer ("Master Servicer"), and ____________, as trustee (the "Trustee"). The
Certificates are described more fully in the Basic Prospectus and the Prospectus
Supplement (each as hereinafter defined) which the Company has furnished to you.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS.
1.1 The Company represents and warrants to, and agrees with, the
Underwriter that as of the date hereof (or as of such other date as may be
specified in a particular representation and warranty):
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-______) on Form S-3 for the
registration under the Securities Act of 1933, as amended (the "Act"), of
Mortgage Pass-Through Certificates (issuable in series), including the
Certificates, which registration statement has become effective, and a copy of
which, as amended to the date hereof, has heretofore been delivered to the
Underwriter. The Company proposes to file with the Commission pursuant to Rule
424(b) under the rules and regulations of the Commission under the Act (the
"1933 Act Regulations") a prospectus supplement dated __________, 200_ (the
"Prospectus Supplement"), to the prospectus dated [__________, 200_] (the "Basic
Prospectus"), relating to the Certificates and the method of distribution
thereof. Such registration statement (No. 333-______) including exhibits thereto
and any information incorporated therein by reference, as amended at the date
hereof, is hereinafter called the "Registration Statement"; and the Basic
Prospectus and the Prospectus Supplement and any information incorporated
therein by reference, together with any amendment thereof or supplement thereto
authorized by the Company on or prior to __________, 200_ (the "Closing Date")
for use in connection with the offering of the Certificates, are hereinafter
called the "Prospectus". The Company further proposes to prepare, after the
final terms of all classes of the Certificates have been established, a Free
Writing Prospectus that will contain substantially all information that will
appear in the Prospectus Supplement, to the extent that such information is
known at that time and minus specific sections including the Method of
Distribution section (such Free Writing Prospectus, together with the Basic
Prospectus, the "Definitive Free Writing Prospectus").
(b) The Registration Statement has become effective and no stop order
suspending the effectiveness of the Registration Statement is in effect, no
proceedings for such purpose are pending before or threatened by the Commission,
and the Registration Statement as of the Effective Date (as defined in this
paragraph), and the Prospectus, as of the date of the Prospectus Supplement,
complied in all material respects with the applicable requirements of the Act
and the 1933 Act Regulations. The Registration Statement, as of the Effective
Date, did not contain any untrue statement of a material fact and did not omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Prospectus, as of the date of the
Prospectus Supplement, did not, and as of the Closing Date will not, contain an
untrue statement of a material fact and did not and will not omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the Company does not make any representations or warranties as to any
information contained in or omitted from the portions of the Prospectus. In
addition, any Issuer Information (as defined below) contained in the Definitive
Free Writing Prospectus, as of the date thereof, did not contain an untrue
statement of a material fact and did not omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The Effective Date shall mean the earlier
of the date on which the Definitive Free Writing Prospectus is first used and
the time of the first Contract of Sale to which such Prospectus Supplement
relates. As used herein, "Pool Information" means all loan level data with
respect to the characteristics of the Mortgage Loans and administrative and
servicing fees, as provided by or on behalf of the Company. The Company
acknowledges that except for any Computational Materials, the Underwriter's
Information and the Decrement/Yield Tables constitute the only information
furnished in writing by you or on your behalf for use in connection with the
preparation of the Registration Statement or the Prospectus, and you confirm
that the Underwriter's Information is correct with respect to you and the
Certificates you underwrite.
(c) The Company has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware and has the requisite organizational power to own its properties and to
conduct its business as presently conducted by it.
(d) The Company is not, as of the commencement of the offering, an
Ineligible Issuer, as such term is defined in Rule 405 of the 1933 Act
Regulations.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) As of the Closing Date (as defined herein), the Certificates will
conform in all material respects to the description thereof contained in the
Prospectus and the representations and warranties of the Company in the Trust
Agreement will be true and correct in all material respects.
(g) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus except as otherwise stated therein,
(A) there has been no material adverse change in the condition, financial or
otherwise, earnings, affairs, regulatory situation or business of the Company or
the Seller, take as a whole and (B) there have been no transactions entered into
by the Company which are material, other than those in the ordinary course of
business.
(h) The Indenture, when executed and delivered by the Issuer, will
constitute a legal, valid and binding instrument enforceable against the Issuer
in accordance with its terms, subject, as to the enforceability of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium and other laws
affecting the rights of creditors generally, and to general principles of equity
and the discretion of the court (regardless of whether enforceability of such
remedies is considered in a proceeding in equity or at law).
(i) The issuance of the Certificates will have been duly authorized by
the Issuer and, when such Certificates are executed and authenticated in
accordance with the Indenture and delivered against payment pursuant to this
Agreement, such Certificates will be validly issued and outstanding; and the
Certificates will be entitled to the benefits provided by the related Indenture.
The Certificates are in all material respects in the form contemplated by the
related Indenture. Immediately prior to the delivery of the Certificates to the
Underwriter, the Company will own the Certificates, and upon such delivery the
Underwriter will acquire title thereto, free and clear of any lien, pledge,
encumbrance or other security interest other than one created or granted by the
Underwriter.
(j) Neither the Issuer nor the Trust Funds are or, as a result of the
offer and sale of the Certificates as contemplated in this Agreement will
become, an "investment company" or "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(k) As of the Closing Date, the Mortgage Loan Purchase Agreement and
the Indenture (collectively with this Agreement, the "Transaction Documents")
will have been duly authorized, executed and delivered by the Company and the
Seller and will conform in all material respects to the description thereof
contained in the Prospectus and will constitute a valid and binding agreement of
the Company and the Seller enforceable in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting the enforcement of creditors' rights generally, and to
general principles of equity and the discretion of the court (regardless of
whether enforceability of such remedies is considered in a proceeding in equity
or at law).
(l) Neither the issuance or delivery of the Certificates, nor the
consummation of any other of the transactions contemplated herein or in the
Transaction Documents, nor compliance with the provisions of the Transaction
Documents will conflict with or result in the breach of any material term or
provision of the certificate of formation or LLC agreement of the Company, and
the Company is not in breach or violation of or in default (nor has an event
occurred which with notice or lapse of time or both would constitute a default)
under the terms of (i) any indenture, contract, lease, mortgage, deed of trust,
note agreement or other evidence of indebtedness or other agreement, obligation
or instrument to which the Company is a party or by which it or its properties
are bound, or (ii) any law, decree, order, rule or regulation applicable to the
Company of any court or supervisory, regulatory, administrative or governmental
agency, body or authority, or arbitrator having jurisdiction over the Company,
or its properties, the default in or the breach or violation of which would have
a material adverse effect on the Company, the trust, the Certificates or on the
ability of the Company to perform its obligations under the Transaction
Documents; and neither the delivery of the Certificates, nor the execution and
delivery of the Transaction Documents or the consummation of any other of the
transactions contemplated herein or in the Transaction Documents, nor the
compliance with the provisions of the Transaction Documents will result in such
a breach, violation or default which would have such a material adverse effect.
(m) No filing or registration with, notice to, or consent, approval,
authorization or order or other action of, any court or governmental authority
or agency is required for the consummation by the Company of the transactions
contemplated by the Transaction Documents (other than as required under state
securities laws or Blue Sky laws, as to which no representations and warranties
are made by the Company), except such as have been, or will have been prior to
the Closing Date, obtained under the Act, and such recordations of the
assignment of the Mortgage Loans.
(n) There is no action, suit or proceeding before or by any court,
administrative or governmental agency, or other tribunal, domestic or foreign,
now pending to which the Company is a party, or, to the best of the Company's
knowledge, threatened against the Company, which could reasonably result
individually or in the aggregate in any material adverse change in the condition
(financial or otherwise), earnings, affairs, regulatory situation or business
prospects of the Company or could reasonably interfere with or materially and
adversely affect the consummation of the transactions contemplated in the
Transaction Documents.
(o) At the time of execution and delivery of the Indenture, the Company
will own the mortgage notes (the "Mortgage Notes") being pledged to the
Indenture Trustee pursuant to the Indenture, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens"), except to the extent permitted in the Indenture, and
will not have assigned to any person other than the Issuer any of its right,
title or interest in the Mortgage Notes.
(p) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of the Transaction Documents and the Note
sand Certificates have been or will be paid by the Company on or prior to the
Closing Date, except for fees for recording assignments of Mortgage Loans to the
Indenture Trustee or, if applicable, to MERS on behalf of the Indenture Trustee,
pursuant to the Indenture that have not yet been completed, which fees will be
paid by the Company in accordance with the Indenture.
(q) The Company acknowledges and agrees that the relationship between
itself and the Underwriter is an arms-length commercial relationship that
creates no fiduciary duty on the part of the Underwriter, and each party
expressly disclaims any fiduciary relationship.
1.2 The Company represents and warrants to, and agrees with, the
Underwriter that as of the Closing Date the representations and warranties of
the Seller in Section 3.1(a) of the Mortgage Loan Purchase Agreement will be
true and correct in all material respects.
1.3 Each Underwriter represents and warrants to and agrees with the
Company that:
(a) Such Underwriter hereby acknowledges that each Underwritten
Certificate is to be maintained on the book-entry records of The Depository
Trust Company ("DTC"). Investors may hold the beneficial interests in minimum
denominations of $100,000 and in integral multiples of $1 in excess thereof.
(b) Such Underwriter represents that it has in place, and covenants
that it shall maintain, internal controls and procedures which it reasonably
believes to be sufficient to ensure full compliance with all applicable legal
requirements with respect to the generation and use of Free Writing Prospectuses
in connection with the offering of the Certificates.
(c) As of the date hereof and as of the Closing Date, such Underwriter
has complied with all of its obligations hereunder. With respect to all Free
Writing Prospectuses provided by the Underwriter to any investor, if any, such
Free Writing Prospectuses are accurate in all material respects (taking into
account the assumptions explicitly set forth in the Free Writing Prospectuses,
except to the extent of any errors therein that are caused by errors in the Pool
Information, and except for any Issuer Information therein). The Free Writing
Prospectuses provided by the Underwriter to the Company pursuant to Section 4.4
constitute a complete set of all Free Writing Prospectuses furnished to any
investor by the Underwriter in connection with the offering of any Certificates,
other than any Underwriter Derived Information.
1.4 The Underwriter covenants and aggress to pay directly, or reimburse
the Company upon demand for (i) any and all taxes (including penalties and
interest) owed or asserted to be owed by the Company as a result of a claim by
the Internal Revenue Service that the transfer of any of the Class R
Certificates to the Underwriter hereunder or any transfer thereof by the
Underwriter may be disregarded for federal tax purposes and (ii) any and all
losses, claims, damages and liabilities, including attorney's fees and expenses,
arising out of any failure of the Underwriter to make payment or reimbursement
in connection with any such assertion as required in (i) above. In addition, the
Underwriter acknowledges that on the Closing Date immediately after the
transactions described herein it will be the owner of the Class R Certificates
for federal tax purposes, and the Underwriter covenants that it will not assert
in any proceeding that the transfer of the Class R Certificates from the Company
to the Underwriter should be disregarded for any purpose.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to the Underwriter, and the Underwriter agree to purchase from the Company,
the Certificates indicated on Schedule I hereto which shall be transferred by
the Company to the Trustee at a price equal to [ ]% of the Certificates as of
the Closing Date.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Certificates shall
be made at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP at 10:00 a.m., New York
City time, on __________, 200_ or such later date as the Underwriter shall
designate, which date and time may be postponed by agreement between the
Underwriter and the Company (such date and time of delivery and payment for the
Certificates being herein called the "Closing Date"). Delivery of the
Certificates shall be made to the Underwriter through the DTC (such
Certificates, the "DTC Registered Notes").
4. OFFERING BY UNDERWRITER.
4.1 It is understood that the Underwriter propose to offer and/or
solicit offers for the Certificates to be purchased by them for sale to the
public as set forth in the Prospectus and the Underwriter agrees that all such
offers, solicitations and sales by them shall be made in compliance with all
applicable laws and regulations. Prior to the date of the first contract of sale
made based on the Definitive Free Writing Prospectus, you have not sold any
Certificate or any security backed by the Mortgage Loans, any interest in any
Certificate or such security or any Mortgage Loan.
4.2 It is understood that the Underwriter will solicit offers to
purchase the Certificates as follows:
(a) Prior to the time you have received the Definitive Free Writing
Prospectus you may, in compliance with the provisions of this Agreement, solicit
offers to purchase Certificates; provided, that you shall not accept any such
offer to purchase a Certificate or any interest in any Certificate or Mortgage
Loan or otherwise enter into any Contract of Sale for any Certificate, any
interest in any Certificate or any Mortgage Loan prior to the investor's receipt
of the Definitive Free Writing Prospectus.
(b) Any Free Writing Prospectus (other than the Definitive Free Writing
Prospectus) relating to the Certificates used by an Underwriter in compliance
with the terms of this Agreement prior to the time such Underwriter has entered
into a Contract of Sale for Certificates shall prominently set forth the
following statement:
The information in this free writing prospectus is preliminary, and
will be superseded by the Definitive Free Writing Prospectus. This free
writing prospectus is being delivered to you solely to provide you with
information about the offering of the Certificates referred to in this
free writing prospectus and to solicit an offer to purchase the
Certificates, when, as and if issued. Any such offer to purchase made
by you will not be accepted and will not constitute a contractual
commitment by you to purchase any of the Certificates until we have
accepted your offer to purchase Certificates. We will not accept any
offer by you to purchase Certificates, and you will not have any
contractual commitment to purchase any of the Certificates until after
you have received the Definitive Free Writing Prospectus. You may
withdraw your offer to purchase Certificates at any time prior to our
acceptance of your offer.
"Written Communication" has the same meaning as that term is defined in Rule
405 of the 1933 Act Regulations.
(c) Any Free Writing Prospectus relating to Certificates and used by an
Underwriter in connection with marketing the Certificates, including the
Definitive Free Writing Prospectus, shall prominently set forth the following
statement:
The Certificates referred to in these materials are being sold when, as
and if issued. You are advised that Certificates may not be issued that
have the characteristics described in these materials. Our obligation
to sell such Certificates to you is conditioned on the mortgage loans
and certificates having the characteristics described in these
materials. If for any reason we do not deliver such Certificates, we
will notify you, and neither the issuer nor any underwriter will have
any obligation to you to deliver all or any portion of the Certificates
which you have committed to purchase, and none of the issuer nor any
underwriter will be liable for any costs or damages whatsoever arising
from or related to such non-delivery.
4.3 It is understood that you will not enter into a Contract of Sale
with any investor until the investor has received the Definitive Free Writing
Prospectus. For purposes of this Agreement, Contract of Sale has the same
meaning as in Rule 159 of the 1933 Act Regulations and all Commission guidance
relating to Rule 159, including without limitation the Commission's statement in
Securities Act Release No. 33-8501 that "a contract of sale can occur under the
federal securities laws before there is a bilateral contract under state law,
for example when a purchaser has taken all actions necessary to be bound but a
seller's obligations remain conditional under state law." The Definitive Free
Writing Prospectus shall prominently set forth the following statement:
This Definitive Free Writing Prospectus supersedes the information in
any free writing prospectus previously delivered in connection with
this offering, to the extent that this Definitive Free Writing
Prospectus is inconsistent with any information in any free writing
prospectus previously delivered in connection with this offering.
4.4 It is understood that you may prepare and provide to prospective
investors certain Free Writing Prospectuses (as defined below), subject to the
following conditions:
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, an Underwriter shall not convey or
deliver any Written Communication to any person in connection with the initial
offering of the Certificates, unless such Written Communication either (i) is
made in reliance on Rule 134 under the Act, (ii) constitutes a prospectus
satisfying the requirements of Rule 430B under the Act, (iii) is the Definitive
Free Writing Prospectus, or (iv) both (1) constitutes a Free Writing Prospectus
(as defined below) used in reliance on Rule 164 and (2) includes only
information that is within the definition of ABS Informational and Computational
Materials as defined in Item 1100 of Regulation AB.
(b) Each Underwriter shall comply with all applicable laws and
regulations in connection with the use of Free Writing Prospectuses, including
but not limited to Rules 164 and 433 of the 1933 Act Regulations and all
Commission guidance relating to Free Writing Prospectuses, including but not
limited to Commission Release No. 33-8591.
(c) For purposes hereof, "Free Writing Prospectus" shall have the
meaning given such term in Rules 405 and 433 of the 1933 Act Regulations.
"Issuer Information" shall mean information included in a Free Writing
Prospectus that both (i) is within the types of information specified in clauses
(1) to (5) of footnote 271 of Commission Release No. 33-8591 (Securities
Offering Reform) as shown in Exhibit I hereto and (ii) has been either prepared
by, or has been reviewed and approved by, the Company. "Underwriter Derived
Information" shall refer to information of the type described in clause (5) of
such footnote 271 when prepared by an Underwriter.
(d) All Free Writing Prospectuses provided to prospective investors,
whether or not filed with the Commission, shall bear a legend on each page
including the following statement:
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION
RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE PROSPECTUS IN THAT
REGISTRATION STATEMENT AND OTHER DOCUMENTS THE ISSUER HAS FILED WITH
THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER AND THE
OFFERING. YOU MAY GET THESE DOCUMENTS AT NO CHARGE BY VISITING ▇▇▇▇▇ ON
THE SEC WEB SITE AT ▇▇▇.▇▇▇.▇▇▇ [AT ______________.COM, OR AT
UNDERWRITER'S WEBSITE]. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR
ANY DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE
PROSPECTUS AT NO CHARGE IF YOU REQUEST IT BY CALLING TOLL-FREE
1-8[XX-XXX-XXXX].
The Company shall have the right to require additional specific legends
or notations to appear on any Free Writing Prospectus, the right to
require changes regarding the use of terminology and the right to
determine the types of information appearing therein.
(e) The Underwriter shall deliver to the Company and its counsel, no
later than two business days prior to the proposed date of first use thereof,
(i) any Free Writing Prospectus prepared by or on behalf of the Underwriter that
contains any information that, if reviewed and approved by the Company, would be
Issuer Information, and (ii) any Free Writing Prospectus or portion thereof that
contains only a description of the final terms of the Certificates after such
terms have been established for all classes of Certificates being publicly
offered. No information in any Free Writing Prospectus shall consist of
information of a type that is not included within the definition of ABS
Informational and Computational Materials. To facilitate filing to the extent
required by Section 5.10 or 5.11, as applicable, all Underwriter Derived
Information shall be set forth in a document separate from the document
including Issuer Information. The Underwriter shall provide to the Company, for
filing as provided in Section 5.10, copies (in such format as required by the
Company) of all Free Writing Prospectuses. All Free Writing Prospectuses
described in this subsection (e) must be approved by the Company before the
Underwriter provides the Free Writing Prospectus to investors pursuant to the
terms of this Agreement.
(f) Each Underwriter agrees that all information included in the Free
Writing Prospectuses shall be prepared, to the extent possible, based on the
information contained in the Registration Statement and anticipated to be
included in the Prospectus. None of the information in the Free Writing
Prospectuses may conflict with the information contained in the Prospectus or
the Registration Statement.
(g) The Company shall not be obligated to file any Free Writing
Prospectuses that have been determined to contain any material error or
omission, unless the Company is required to file the Free Writing Prospectus
pursuant to Section 5.10 below. In the event that an Underwriter becomes aware
that, as of the date on which an investor entered into an agreement to purchase
any Certificates, any Free Writing Prospectus prepared by or on behalf of the
Underwriter and delivered to such investor contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading, such Underwriter shall notify the Company thereof as
soon as practical but in any event within one business day after discovery.
(h) If the Underwriter does not provide any Free Writing Prospectuses
to the Company pursuant to subsection (e) above, the Underwriter shall be deemed
to have represented, as of the Closing Date, that they did not provide any
prospective investors with any information in written or electronic form in
connection with the offering of the Certificates that is required to be filed
with the Commission by the Company as a Free Writing Prospectus (other than the
Definitive Free Writing Prospectus) in accordance with the 1933 Act Regulations.
(i) In the event of any delay in the delivery by the Underwriter to the
Company of any Free Writing Prospectuses required to be delivered in accordance
with subsection (e) above, or in the delivery of the accountant's comfort letter
in respect thereof pursuant to subsection (f) above, the Company shall have the
right to delay the release of the Prospectus to investors or to the Underwriter,
to delay the Closing Date and to take other appropriate actions in each case as
necessary in order to allow the Company to comply with its agreement set forth
in Section 5.10 to file the Free Writing Prospectuses by the time specified
therein.
(j) Each Underwriter represents that it has in place, and covenants
that it shall maintain internal controls and procedures which it reasonably
believes to be sufficient to ensure full compliance with all applicable legal
requirements of the 1933 Act Regulations with respect to the generation and use
of Free Writing Prospectuses in connection with the offering of the
Certificates. In addition, each Underwriter shall, for a period of at least
three years after the date hereof, maintain written and/or electronic records of
the following:
(i) Any written communications in respect of the Certificates
not deemed a Prospectus or a Free Writing Prospectus because its
content is limited to the statements permitted by Rule 134 of the
Securities Act;
(ii) any Free Writing Prospectus used to solicit offers to
purchase Certificates;
(iii) regarding each Free Writing Prospectus delivered to a
prospective investor, the date of such delivery and identity of such
prospective investor;
(iv) regarding each offer to purchase Certificates received by
such Underwriter, the identity of the offeror, the date the offer was
made and the proposed terms and allocation of the Certificates offered
to be purchased; and
(v) regarding each Contract of Sale entered into by such
Underwriter, the date, identity of the investor and the terms of such
Contract of Sale, including the amount and price of Certificates
subject to such Contract of Sale.
(k) Each Underwriter covenants with the Company that after the final
Prospectus is available such Underwriter shall not distribute any written
information concerning the Certificates to a prospective investor unless such
information is preceded or accompanied by the final Prospectus.
(l) Each Underwriter agrees to provide written notice to the Company of
the date it first enters into any Contract of Sale for a Certificate.
4.5 Each Underwriter further agrees that on or prior to the sixth day
after the Closing Date, such Underwriter shall provide the Company with a
certificate, substantially in the form of Exhibit G attached hereto, setting
forth (i) in the case of each class of Certificates purchased by such
Underwriter, (a) if less than 10% of the aggregate principal balance or notional
amount, as applicable, of such class of Certificates has been sold to the public
as of such date, the value calculated pursuant to clause (b)(iii) of Exhibit G
hereto, or, (b) if 10% or more of such class of Certificates has been sold to
the public as of such date but no single price is paid for at least 10% of the
aggregate principal balance or notional amount, as applicable of such class of
Certificates, then the weighted average price at which the Certificates of such
class were sold expressed as a percentage of the principal balance or notional
amount, as applicable, of such class of Certificates sold, or (c) the first
single price at which at least 10% of the aggregate principal balance or
notional amount, as applicable, of such class of Certificates was sold to the
public, (ii) the prepayment assumption used in pricing such Certificates, and
(iii) such other information as to matters of fact as the Company may reasonably
request to enable it to comply with its reporting requirements with respect to
such Certificates to the extent such information can in the good faith judgment
of such Underwriter be determined by it.
4.6 Each Underwriter further agrees that (i) it will include in every
confirmation sent out the notice required by Rule 173 informing the investor
that the sale was made pursuant to the Registration Statement and that the
investor may request a copy of the Prospectus from such Underwriter; (ii) if a
paper copy of the Prospectus is requested by a person who receives a
confirmation, such Underwriter shall deliver a paper copy of such Prospectus;
(iii) if an electronic copy of the Prospectus is delivered by an Underwriter for
any purpose, such copy shall be the same electronic file containing the
Prospectus in the identical form transmitted electronically to such Underwriter
by or on behalf of the Company specifically for use by such Underwriter pursuant
to this Section 4.6; for example, if the Prospectus is delivered to an
Underwriter by or on behalf of the Company in a single electronic file in .pdf
format, then such Underwriter will deliver the electronic copy of the Prospectus
in the same single electronic file in .pdf format; and (iv) it has not used, and
during the period for which it has an obligation to deliver a "prospectus" (as
defined in Section 2(a)(10) of the Act) relating to the Certificates (including
any period during which you have such delivery obligation in its capacity as a
"dealer" (as defined in Section 2(a)(12) of the Act)) it will not use any
internet website or electronic media containing information for prospective
investors, including any internet website or electronic media maintained by
third parties, in connection with the offering of the Certificates, except in
compliance with applicable laws and regulations. Each Underwriter further agrees
that (i) if it delivers to an investor the Prospectus in .pdf format, upon such
Underwriter's receipt of a request from the investor within the period for which
delivery of the Prospectus is required, such Underwriter will promptly deliver
or cause to be delivered to the investor, without charge, a paper copy of the
Prospectus and (ii) it will provide to the Company any Free Writing
Prospectuses, or portions thereof, which the Company is required to file with
the Commission in electronic format and will use reasonable efforts to provide
to the Company such Free Writing Prospectuses, or portions thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF, except to the
extent that the Company, in its sole discretion, waives such requirements.
4.7 In the event that an Underwriter uses a road show (as defined in
Rule 433) in connection with the offering of the Certificates, all information
in the road show will be provided orally only, and not as a Written
Communication. Each Underwriter agrees that any slideshow used in connection
with a road show (i) will only be provided as part of the road show and not
separately, (ii) if handed out at any meeting as a hard copy, will be retrieved
prior to the end of the meeting, and (iii) will otherwise be used only in a
manner that does not cause the slideshow to be treated as a Free Writing
Prospectus.
5. AGREEMENTS. The Company agrees with the Underwriter that:
5.1 The Company will promptly advise the Underwriter (i) when any
amendment to the Registration Statement has become effective or any revision of
or supplement to the Prospectus has been so filed (unless such amendment,
revision or supplement does not relate to the Certificates), (ii) of any request
by the Commission for any amendment of the Registration Statement or the
Prospectus or for any additional information (unless such request for additional
information does not relate to the Certificates or the trust), (iii) of any
written notification received by the Company of the suspension of qualification
of the Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or, to the knowledge of the Company, the
threatening of any proceeding for that purpose. Before amending or supplementing
the Registration Statement or the Prospectus with respect to the Certificates,
the Company will furnish the Underwriter with a copy of each such proposed
amendment or supplement. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof.
5.2 The Company will cause the Prospectus Supplement to be transmitted
to the Commission for filing pursuant to Rule 424(b) under the Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule. The Company will cause the Prospectus Supplement to be transmitted to the
Commission for filing no later than the close of business on the business day
prior to the Closing Date.
5.3 If, during the period after the first date of the public offering
of the Certificates in which a prospectus relating to the Underwritten
Securities is required to be delivered under the Act, any event occurs as a
result of which it is necessary to amend or supplement the Prospectus, as then
amended or supplemented, in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it shall be necessary to amend or supplement the Prospectus to
comply with the Act or the 1933 Act Regulations, the Company promptly will
prepare and furnish, at its own expense, to the Underwriter, and will file with
the Commission, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with the Act or the 1933 Act
Regulations.
5.4 If any Written Communication or oral statement in connection with
the offering of the Certificates contains an untrue statement of material fact
or omits to state a material fact necessary to make the statements, in light of
the circumstances under which they were made, not misleading at the time that a
Contract of Sale was entered into, when taken together with all information that
was conveyed to any person with whom a Contract of Sale was entered into, then
the Underwriter shall provide any such person with the following:
(a) Adequate disclosure of the contractual arrangement;
(b) Adequate disclosure of the person's rights under the
existing Contract of Sale at the time termination is sought;
(c) Adequate disclosure of the new information that is
necessary to correct the misstatements or omissions in the information given at
the time of the original Contract of Sale; and
(d) A meaningful ability to elect to terminate or not
terminate the prior Contract of Sale and to elect to enter into or not enter
into a new Contract of Sale.
5.5 The Company will furnish to you, without charge, a copy of the
Registration Statement (including exhibits thereto) and, so long as delivery of
a prospectus by an underwriter or dealer may be required by the Act, as many
copies of the Prospectus, any documents incorporated by reference therein and
any amendments and supplements thereto as you may reasonably request; provided,
however, that you will provide the notice specified in Section 4.6 in every
confirmation and will only deliver the prospectus to those investors that
request a paper copy thereof.
5.6 The Company agrees, so long as the Certificates shall be
outstanding, or until such time as the Underwriter shall cease to maintain a
secondary market in the Certificates, whichever first occurs, to deliver to the
Underwriter the annual statement as to compliance delivered to the Trustee
pursuant to Section 3.16 of the RMBS Servicing Agreement and the Indenture and
the annual statement of a firm of independent public accountants furnished to
the Issuer and the Trustee pursuant to Section 3.17 of the RMBS Servicing
Agreement, as soon as such statements are furnished to the Company.
5.7 The Company will endeavor to arrange for the qualification of the
Certificates for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as the Underwriter may reasonably designate
and will maintain such qualification in effect so long as required for the
initial distribution of the Certificates; provided, however, that the Company
shall not be required to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to general or
unlimited service of process in any jurisdiction where it is not now so subject.
5.8 If the transactions contemplated by this Agreement are consummated,
the Company will pay or cause to be paid at or prior to the Closing all expenses
incident to the performance of the obligations of the Company under this
Agreement, and will reimburse the Underwriter for any reasonable expenses
(including reasonable fees and disbursements of counsel and accountants)
reasonably incurred by the Underwriter in connection with the purchase and sale
of the Certificates (including without limitation the fees and disbursements of
the Underwriter's counsel and the Underwriter's due diligence costs and expenses
with respect thereto) and the transactions contemplated hereby and thereby, and
the qualification of the Certificates for sale and determination of their
eligibility for investment under the laws of such jurisdictions as the
Underwriter have reasonably requested pursuant to Section 5.6 above and the
printing of memoranda relating thereto, for any fees charged by investment
rating agencies for the rating of the Certificates, for the filing fee of the
National Association of Securities Dealers, Inc. relating to the Certificates,
if applicable, and for expenses incurred in distributing the Prospectus
(including any amendments and supplements thereto) to the Underwriter.
5.9 If, during the period after the Closing Date in which a prospectus
relating to the Certificates is required to be delivered under the Act, the
Company receives notice that a stop order suspending the effectiveness of the
Registration Statement or preventing the offer and sale of the Certificates is
in effect, the Company will advise the Underwriter of the issuance of such stop
order. Upon receipt of notice of such stop order, the Underwriter shall cease
all offers and sales of the Certificates.
5.10 The Company shall file any Free Writing Prospectus prepared by the
Company (including the Definitive Free Writing Prospectus), and any Issuer
Information contained in any Free Writing Prospectus provided to it by the
Underwriter under Section 4.4(e), not later than the date of first use of such
Free Writing Prospectus, except that:
(a) As to any Free Writing Prospectus or portion thereof required to be
filed that contains only the description of the final terms of the Certificates
after such terms have been established for all classes of Certificates being
publicly offered, such Free Writing Prospectus or portion thereof may be filed
by the Company within two days of the later of the date such final terms have
been established for all classes of Certificates being publicly offered and the
date of first use; and
(b) Notwithstanding clause (a) above, as to any Free Writing Prospectus
or portion thereof required to be filed that contains only information of a type
included within the definition of ABS Informational and Computational Materials,
the Company shall file such Free Writing Prospectus or portion thereof within
the later of two business days after the Underwriter first provides this
information to investors and the date upon which the Company is required to file
the Prospectus Supplement with the Commission pursuant to Rule 424(b)(3) of the
Act.
provided further, that prior to such use of any Free Writing Prospectuses by the
Company, the Underwriter must comply with their obligations pursuant to Section
4.4 and that the Company shall not be required to file any Free Writing
Prospectus that does not contain substantive changes from or additions to a Free
Writing Prospectus previously filed with the Commission.
5.11 The Underwriter shall file any Free Writing Prospectus that has
been distributed by the Underwriter in a manner that could lead to its broad,
unrestricted dissemination not later than the date of first use, provided that
if that Free Writing Prospectus contains only information of a type included
within the definition of ABS Informational and Computational Materials then such
filing shall be made within the later of two business days after the Underwriter
first provide this information to investors and the date upon which the Company
is required to file the Prospectus Supplement with the Commission pursuant to
Rule 424(b)(3) of the Act; provided further, that the Company shall not be
required to file any Free Writing Prospectus that does not contain substantive
changes from or additions to a Free Writing Prospectus previously filed with the
Commission.
5.12 During the period when a prospectus is required by law to be
delivered in connection with the sale of the Certificates pursuant to this
Agreement, the Issuer will file or cause to be filed, on a timely and complete
basis, all documents that are required to be filed by the Issuer with the
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act (as defined
below).
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. The Underwriter's
obligation to purchase the Certificates in the respective amounts set forth
opposite their names on Schedule I attached hereto shall be subject to the
following additional conditions:
6.1 No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened by the Commission or by
any authority administering any state securities or Blue Sky law; and the
Prospectus Supplement shall have been filed or transmitted for filing, by means
reasonably calculated to result in a filing with the Commission pursuant to Rule
424(b) under the Act.
6.2 Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have been any
change, or any development involving a prospective change, in or affecting the
business or properties of the Company, the Seller or any of their respective
affiliates the effect of which, in any case, is, in that Underwriter's
reasonable judgment, so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the Certificates as
contemplated by the Registration Statement and the Prospectus. All actions
required to be taken and all filings required to be made by the Issuer under the
Act and the Exchange Act prior to the sale of the Certificates shall have been
duly taken or made.
6.3 The Company shall have delivered to the Underwriter a certificate,
dated the Closing Date, of the President, an Executive Vice President, a Senior
Vice President or a Vice President of the Company to the effect that the signer
of such certificate has examined this Agreement, the Prospectus, the Indenture,
the Servicing Agreements, the Mortgage Loan Purchase Agreement, the Trust
Agreement and various other closing documents, and that, to the best of his or
her knowledge after reasonable investigation:
(a) the representations and warranties of the Company in this Agreement
and in the Trust Agreement are true and correct in all material respects;
(b) the Company has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(c) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated;
(d) subsequent to the respective dates as of which information is given
in the Prospectus, and except as set forth or contemplated in the Prospectus,
there has not been any material adverse change in the general affairs, business,
key personnel, capitalization, financial condition or results of operations of
the Company or the Seller;
(e) except as otherwise stated in the Prospectus, there are no actions,
suits or proceedings pending before any court or governmental agency, authority
or body or, to their knowledge, threatened, against the Company or the Seller
that could reasonably have a material adverse affect on (i) the Company or the
Seller or (ii) the transactions contemplated by this Agreement; and
(f) attached thereto are true and correct copies of a letter or letters
from one or more nationally recognized statistical rating agencies confirming
that the Certificates have been rated in one of the four highest grades by each
of such agencies rating that class of Certificates and that such rating has not
been lowered since the date of such letter.
6.4 The Company shall have delivered to the Underwriter a certificate,
dated the Closing Date, of the President, an Executive Vice President, a
Managing Director or a Director of the Company to the effect that the signer of
such certificate has examined the Servicing Agreements, the Indenture, the
Mortgage Loan Purchase Agreement, the Trust Agreement and this Agreement and
that, to his or her knowledge after reasonable investigation, the
representations and warranties of the Company contained in this Agreement are
true and correct in all material respects.
6.5 The Seller shall have delivered to the Underwriter a certificate,
dated the Closing Date, of the President, a Managing Director or a Director of
the Seller to the effect that the signer of such certificate has examined the
Mortgage Loan Purchase Agreement and that, to his or her knowledge after
reasonable investigation, the representations and warranties of the Seller
contained in the Mortgage Loan Purchase Agreement are true and correct in all
material respects.
6.6 You shall have received the opinion and letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
& ▇▇▇▇ LLP, counsel for the Company and the Seller, dated the Closing Date and
substantially to the effect set forth in Exhibit A and Exhibit B [NOTE: Exhibit
B will be revised to address the Definitive Free Writing Prospectus].
6.7 You shall have received from counsel for the Underwriter, an
opinion dated the Closing Date in form and substance satisfactory to the
Underwriter.
6.8 (i) You shall have received from Deloitte & Touche LLP, certified
public accountants, a letter addressed to the Underwriter and dated the date
hereof and satisfactory in form and substance to the Underwriter and the
Underwriter's counsel, to the effect that they have performed certain specified
procedures, all of which have been agreed to by the Underwriter, as a result of
which they determined that certain information of an accounting, financial or
statistical nature set forth in the Prospectus Supplement under the captions
"The Mortgage Pool" and "Description of the Grantor Trust Certificates and the
Notes" agrees with the records of the Company and the Seller excluding any
questions of legal interpretation.
(ii) At the Closing Date, Deloitte & Touche LLP and/or any other firm
of certified independent public accountants acceptable to you shall have
furnished to you a letter, addressed to you, and in form and substance
satisfactory to you in all respects, relating to the extent such information is
not covered in the letter or letters provided pursuant to Section 6.7(i), to the
characteristics of the mortgage loans, as presented in the Prospectus
Supplement.
6.9 The Class I-A Grantor Trust Certificates shall have been rated
"AAA" by Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
("Standard & Poor's") and "Aaa" by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's").
The Class I-M-1 Grantor Trust Certificates shall have been rated at least "AA+"
by Standard & Poor's and "Aa1" by Moody's. The Class I-M-2 Grantor Trust
Certificates shall have been rated at least "AA" by Standard & Poor's and "Aa2"
by Moody's. The Class I-M-3 Grantor Trust Certificates shall have been rated at
least "AA-" by Standard & Poor's and "Aa3" by Moody's.
6.10 You shall have received the opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
LLP, special counsel to the Owner Trustee and the Issuer, dated the Closing
Date, substantially to the effect set forth in Exhibit C-1.
6.11 You shall have received the opinions of ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP, counsel to the Indenture Trustee, dated the Closing Date,
substantially to the effect set forth in Exhibit C-2.
6.12 You shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel
to the Company, reliance letters with respect to any opinions delivered to
Standard & Poor's and Moody's.
The Company will furnish you with conformed copies of the above opinions,
certificates, letters and documents as you reasonably request.
If any of the conditions specified in this Article 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriter, this Agreement and all obligations of the
Underwriter hereunder may be canceled at, or at any time prior to, the Closing
Date by the Underwriter. Notice of such cancellation shall be given to the
Company in writing, or by telephone or telegraph confirmed in writing.
7. INDEMNIFICATION AND CONTRIBUTION.
7.1 The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls an Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), from and against any and all losses,
claims, damages and liabilities (including reasonable legal or other expenses)
to which you or any such person may become subject under the Act or the Exchange
Act, or otherwise, insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Definitive Free Writing
Prospectus, or in any Issuer Information contained in any other Free Writing
Prospectus, or in any Underwriter Derived Information to the extent caused by
any material error in the Pool Information, or in the Registration Statement for
the registration of the Certificates as originally filed or in any amendment
thereof or other filing incorporated by reference therein, or in the Prospectus
or incorporated by reference therein (if used within the period set forth in
Section 5.3 hereof and as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or arise out of or are based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages, or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon any
information with respect to which the Underwriter has agreed to indemnify the
Company pursuant to Section 7.2. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
7.2 The Underwriter agree, severally and not jointly, to indemnify and
hold harmless the Company, its respective directors or officers and any person
controlling the Company to the same extent as the indemnity set forth in Section
7.1 above from the Company to the Underwriter, but only with respect to (i) the
Underwriter's Information and the Decrement/Yield Tables, (ii) any Underwriter
Derived Information, except to the extent of any errors in any Underwriter
Derived Information that are caused by errors in the Pool Information, (iii) any
Free Writing Prospectus for which the conditions set forth in Section 4.4(e)
above are not satisfied with respect to the prior approval by the Company, (iv)
any portion of any Free Writing Prospectus (other than the Definitive Free
Writing Prospectus) not constituting Issuer Information, (v) any liability
resulting from your failure to provide any investor with the Definitive Free
Writing Prospectus prior to entering into a Contract of Sale with such investor
or failure to file any Free Writing Prospectus required to be filed by the
Underwriter in accordance with Section 5.11, and (vi) any liability resulting
from your failure to comply with Section 4.7 in connection with any road show.
This indemnity agreement will be in addition to any liability which the
Underwriter may otherwise have.
The Company acknowledges that the Underwriter's Information and the
Decrement/Yield Tables constitute the only information furnished in writing by
or on behalf of the Underwriter expressly for use in the Registration Statement
or the Prospectus or in any amendment thereof or supplement thereto, as the case
may be.
7.3 In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either Section 7.1 or 7.2, such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. In any case described in subclauses
(i) or (ii) of the immediately preceding sentence, the reasonable fees and
disbursements of counsel for the indemnified party shall be paid by the
indemnifying party. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
for all such indemnified parties. Such firm shall be designated in writing by
you, in the case of parties indemnified pursuant to Section 7.1 and by the
Company, in the case of parties indemnified pursuant to Section 7.2. The
indemnifying party may, at its option, at any time upon written notice to the
indemnified party, assume the defense of any proceeding and may designate
counsel reasonably satisfactory to the indemnified party in connection therewith
provided that the counsel so designated would have no actual or potential
conflict of interest in connection with such representation. Unless it shall
assume the defense of any proceeding the indemnifying party shall not be liable
for any settlement of any proceeding, effected without its written consent (such
consent not to be unreasonably withheld or delayed), but if settled with such
consent or if there shall be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. If the
indemnifying party assumes the defense of any proceeding, it shall be entitled
to settle such proceeding with the consent of the indemnified party or, if such
settlement provides for release of the indemnified party in connection with all
matters relating to the proceeding which have been asserted against the
indemnified party in such proceeding by the other parties to such settlement,
without the consent of the indemnified party. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement does not
include a statement as to or admission of, fault, culpability or a failure to
act by or on behalf of any such indemnified party and such settlement includes
an unconditional release of the indemnified party from all liability arising out
of the action or claim related to such proceeding.
7.4 If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7.1 or 7.2 hereof or
insufficient in respect of any losses, claims, damages, expenses or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, expenses or
liabilities, in such proportion as is appropriate to reflect (i) the relative
benefits received by the Company on the one hand and the Underwriter on the
other from the offering of the Certificates 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 in connection with the statements or omissions or
alleged statements or alleged omissions which resulted in such losses, claims,
damages, expenses or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand,
and by the Underwriter on the other shall be in the same proportions that the
purchase price paid by the Underwriter to the Company for the Certificates ("Net
Proceeds") bears to the excess of (a) the purchase prices paid by investors to
the Underwriter for the Certificates (the "Public Offering Price") over (b) Net
Proceeds. The relative fault of the Company on the one hand and of any
Underwriter on the other 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 or by the Underwriter, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
7.5 The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the considerations referred to in Section 7.4, above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim and any and all amounts paid in settlement of any claim of
litigation except where the indemnified party is required to bear such expenses
pursuant to Section 7.4; which expenses the indemnifying party shall pay as and
when incurred, at the request of the indemnified party, to the extent that the
indemnifying party believes that it will be ultimately obligated to pay such
expenses. Notwithstanding the provisions of this Section 7, each Underwriter
shall not be required to contribute any amount in excess of the amount by which
the total aggregate Public Offering Price of the Certificates underwritten by
such Underwriter and distributed to the public by such Underwriter exceeds the
Net Proceeds with respect to such Underwriter. In the event that any expenses so
paid by the indemnifying party are subsequently determined to not be required to
be borne by the indemnifying party hereunder, the party which received such
payment shall promptly refund the amount so paid to the party which made such
payment. 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.
7.6 The indemnity and contribution agreements contained in this Section
7 and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by an Underwriter or on behalf of
the Underwriter or any person controlling an Underwriter or by or on behalf of
the Company and their respective directors or officers or any person controlling
the Company and (iii) acceptance of and payment for any of the Certificates.
8. TERMINATION. (a) This Agreement shall be subject to termination by
notice given to the Company, if the sale of the Certificates provided for herein
is not consummated because of any failure or refusal on the part of the Company
to comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform their respective
obligations under this Agreement. If you terminate this Agreement in accordance
with this Section 8, the Company will reimburse you for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel
and accountants) that shall have been reasonably incurred by the Underwriter in
connection with the proposed purchase and sale of the Certificates and such
termination and reimbursement.
(b) The Underwriter shall have the right to terminate this Agreement at
any time prior to the Closing Date by notice given to the Company (i) if any
domestic or international event or act or occurrence has materially disrupted
the securities markets, (ii) if trading on the New York or American Stock
Exchanges shall have been suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for securities shall have
been required on the New York or American Stock Exchanges by the New York or
American Stock Exchanges or by order of the Commission or any other governmental
authority having jurisdiction, (iii) if a banking moratorium has been declared
by a state or Federal authority, (iv) if a banking moratorium in foreign
exchange trading by major international banks or persons has been declared, (v)
if any new restriction materially and adversely affecting the distribution of
the Certificates shall have become effective, or (vi) there shall have occurred
any outbreak or escalation of hostilities or other calamity or crisis the effect
of which on the financial markets is such as to make it, in your reasonable
judgment, impracticable to market the Certificates on the terms specified in
this Agreement. Any notice of termination pursuant to this Section 8(b) shall be
by telephone, telex, or telegraph, confirmed in writing by letter.
9. CERTAIN REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or the officers of any of the Company, and the Underwriter set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
the Underwriter or on its behalf or made by or on behalf of the Company or any
of its respective officers, directors or controlling persons, and will survive
delivery of and payment for the Certificates and any termination of this
Agreement.
10. ADDITIONAL UNDERWRITING OF THE CERTIFICATES. Each Underwriter agrees
that in connection with any subsequent underwriting of the non-underwritten
Certificates acquired from the Company or its affiliates, the Underwriter:
(a) Will enter into an underwriting agreement with the Company
substantially similar to this Agreement;
(b) Will provide a copy of the Prospectus Supplement, together
with any intervening amendments thereof and supplements
thereto, and copies of all remittance reports to investors in
the non-underwritten Certificates, together with any
additional disclosure mutually agreeable to the Underwriter
and the Company; and
(c) Will not require an underwriting fee.
In connection with any subsequent underwriting, the Company shall provide to the
Underwriter any additional documentation, letters or opinions as it may
reasonably require, including, without limitation, letters and opinions provided
by counsel to the Issuer updated to reflect the subsequent underwriting.
11. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to an Underwriter, will be mailed, delivered or
telegraphed and confirmed to the Underwriter at
[____________________________________________]Attention: General Counsel, or if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at [______________________________________]Attention: General Counsel.
12. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
principles governing conflicts of law.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the Underwriter.
Very truly yours,
BNP PARIBAS MORTGAGE ABS LLC
By:______________________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
[UNDERWRITER]
By:________________________________________
Name:
Title:
SCHEDULE I
UNDERWRITER AMOUNT
[---------] $[ ]
[---------] $[ ]
[---------] $[ ]
[---------] $[ ]
EXHIBIT A
CLOSING OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
EXHIBIT B
10B-5 LETTER OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
EXHIBIT C-1
OPINIONS OF OWNER TRUSTEE AND ISSUER'S COUNSEL
EXHIBIT C-2
OPINION OF INDENTURE TRUSTEE'S COUNSEL
EXHIBIT D
Underwriter's Information
EXHIBIT E
[Reserved]
EXHIBIT F
[RESERVED]
EXHIBIT G
February [ ], 2006
BNP Paribas Mortgage ABS LLC
[ ]
Re: BNP Paribas Mortgage ABS LLC, Asset-Backed Certificates and
Mortgage- Backed Notes, Series 2006-[ ], Class [___________]
Pursuant to Section 4.3 of the Underwriting Agreement, dated February
[__], 2006, among BNP Paribas Mortgage ABS LLC and [ ] (the "Underwriter(s)")
relating to the Grantor Trust Certificates ("Certificates") referenced above,
the undersigned does hereby certify that:
(a) The prepayment assumption used in pricing the Certificates was
_____% [___].
(b) Set forth below is (i) the first price, as a percentage of the
principal balance or notional amount, as applicable, of each
class of Certificates, at which 10% of the aggregate principal
balance or notional amount, as applicable, of each such class
of Certificates was sold to the public at a single price, if
applicable, or (ii) if 10% or more of a class of Certificates
have been sold to the public but no single price is paid for
at least 10% of the aggregate principal balance or notional
amount, as applicable, of such class of Certificates, then the
weighted average price at which the Certificates of such class
were sold expressed as a percentage of the principal balance
or notional amount, as applicable, of such class of
Certificates, or (iii) if less than 10% of the aggregate
principal balance or notional amount, as applicable, of a
class of Certificates has been sold to the public, the
purchase price for each such class of Certificates paid by the
Underwriters expressed as a percentage of the principal
balance or notional amount, as applicable, of such class of
Certificates calculated by: (1) estimating the fair market
value of each such class of Certificates not sold to the
public as of February [___], 2006; (2) adding such estimated
fair market value to the aggregate purchase price of each
class of Certificates actually sold to the public as of such
date; (3) dividing each of the fair market values determined
in clause (1) by the sum obtained in clause (2); (4)
multiplying the quotient obtained for each class of
Certificates in clause (3) by the purchase price paid by the
Underwriters for all the Certificates of each class; and (5)
for each class of Certificates, dividing the product obtained
for such class of Certificates in clause (4) by the original
principal balance or notional amount, as applicable, of such
class of Certificates:
Certificates: ________
[* less than 10% has been sold to the public]
The prices set forth above do not include accrued interest with respect
to periods before closing.
[ ]
By:_________________________________
Name:
Title:
EXHIBIT H
[RESERVED]
EXHIBIT I
FOOTNOTE 271 INFORMATION
[Excerpt from Offering Reform adopting release-bold headings added for
convenience of reference]
In the case of asset-backed issuers certain information comprehended within the
definition of ABS informational and computational material is analogous to the
term of securities and is therefore issuer information. For example, we would
expect that the following categories of such material, which are derived from
the definition of ABS informational and computational materials, are generally
issuer information:
(1) STRUCTURAL INFORMATION-factual information regarding the
asset-backed securities being offered and the structure and basic parameters of
the securities, such as the number of classes, seniority, payment priorities,
terms of payment, the tax, ERISA or other legal conclusions of counsel, and
descriptive information relating to each class (e.g., principal amount, coupon,
minimum denomination, price or anticipated price, yield, weighted average life,
credit enhancements, anticipated ratings, and other similar information relating
to the proposed structure of the offering);
(2) COLLATERAL INFORMATION-factual information regarding the pool
assets underlying the asset-backed securities, including origination,
acquisition and pool selection criteria, information regarding any prefunding or
revolving period applicable to the offering, information regarding significant
obligors, data regarding the contractual and related characteristics of the
underlying pool assets (e.g., weighted average coupon, weighted average
maturity, delinquency and loss information and geographic distribution) and
other factual information concerning the parameters of the asset pool
appropriate to the nature of the underlying assets, such as the type of assets
comprising the pool and the programs under which the loans were originated;
(3) KEY PARTIES INFORMATION-identification of key parties to the
transaction, such as servicers, trustees, depositors, sponsors, originators and
providers of credit enhancement or other support, including information about
any such party;
(4) STATIC POOL DATA-static pool data, as referenced in Item 1105 of
Regulation AB [17 CFR 229.1105], such as for the sponsor's and/or servicer's
portfolio, prior transactions or the asset pool itself; and
(5) ISSUER COMPUTATIONAL MATERIAL-to the extent that the information is
provided by the issuer, depositor, affiliated depositor, or sponsor, statistical
information displaying for a particular class of asset-backed securities the
yield, average life, expected maturity, interest rate sensitivity, cash flow
characteristics, total rate of return, option adjusted spread or other financial
or statistical information related to the class or classes under specified
prepayment, interest rate, loss or other hypothetical scenarios. (Where such
information is prepared by an underwriter or dealer, it is not issuer
information, even when derived from issuer information.)
