EXHIBIT 1.1
BEAR XXXXXXX MORTGAGE SECURITIES INC.
SHARED APPRECIATION MORTGAGE PASS-THROUGH
CERTIFICATES UNDERWRITING AGREEMENT
____ __, 2000
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introduction. SAMCO Mortgage Securities Corp, a Delaware
corporation (the "Company"), from time to time proposes to issue and sell
Shared Appreciation Mortgage Pass- Through Certificates ("Certificates") in
various series (each a "Series"), and, within each Series, in various
classes, in one or more offerings on terms determined at the time of sale.
The Certificates of each series will be issued pursuant to a pooling and
servicing agreement (each, a "Pooling and Servicing Agreement") among the
Company, as depositor, one or more master servicers which may include the
Company and a third-party trustee (the "Trustee"). Upon issuance, the
Certificates of each series will evidence undivided interests in the Trust
Fund (as defined in the Pooling and Servicing Agreement) established for
such series containing shared appreciation mortgages ("XXXx") or, in the
event the Trust Fund, or a portion thereof, constitutes the upper tier of a
two-tier real estate mortgage investment conduit ("REMIC"), the Trust Fund
may contain interests issued by a lower tier trust which will contain
shared appreciation mortgages, all as described in the Prospectus (as
defined below). Terms not defined herein which are defined in the Pooling
and Servicing Agreement shall have the meanings ascribed to them in the
Pooling and Servicing Agreement.
Whenever the Company determines to make an offering of a Series of
Certificates (an "Offering") through you or an underwriting syndicate
managed or co-managed by you, it will offer to enter into an agreement
("Terms Agreement") providing for the sale of such Certificates to, and the
purchase and offering thereof by, you and such other co-managers and
underwriters, if any, which have been selected by you and have authorized
you to enter into such Terms Agreement and other related documentation on
their behalf (the "Underwriters," which term shall include you whether
acting alone in the sale of Certificates or as a co-manager or as a member
of an underwriting syndicate). The Terms Agreement relating to each
Offering shall specify the principal amount of Certificates to be issued
and their terms not otherwise specified in the Pooling and Servicing
Agreement, the price at which the Certificates are to be purchased by each
of the Underwriters from the Company and the initial public offering price
or the method by which the price at which the Certificates are to be sold
will be determined. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any
standard form of written telecommunication between you and the Company.
Each Offering governed by this Agreement, as supplemented by the applicable
Terms Agreement, shall inure to the benefit of and be binding upon the
Company and each of the Underwriters participating in the Offering of such
Certificates.
The Company hereby agrees with the Underwriters as follows:
2. Representations and Warranties of the Company.
The Company represents and warrants to you as of the date hereof, and to
the Underwriters named in the applicable Terms Agreement as of the date of
such Terms Agreement, as follows:
(a) A registration statement, 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
("Act"), have been filed with the Securities and Exchange Commission
("Commission") and such registration statement as amended has become
effective. Such registration statement as amended and the prospectus
relating to the sale of Certificates constituting a part thereof as from
time to time amended or supplemented (including any prospectus filed with
the Commission pursuant to Rule 424 of the rules and regulations of the
Commission ("Rules and Regulations") under the Act, including any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Act which were filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") on or before the Effective Date of the Registration
Statement or the date of the Prospectus Supplement, are respectively
referred to herein as the "Registration Statement" and the "Prospectus";
provided, however, that a supplement to the Prospectus (a "Prospectus
Supplement") prepared pursuant to Section 5(a) hereof shall be deemed to
have supplemented the Prospectus only with respect to the Offering of the
Series of Certificates to which it relates. The conditions of Rule 415
under the Act have been satisfied with respect to the Company and the
Registration Statement.
(b) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all material
respects to the requirements of the Act and the Rules and Regulations, and
did not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of each Terms Agreement,
the Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations, and
the Prospectus will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading; provided, however, that the foregoing does not
apply to (i) statements or omissions in such documents based upon written
information furnished to the Company by any Underwriter specifically for use
therein or (ii) any Current Report (as defined in Section 5(b) below) or in any
amendment thereof or supplement thereto, incorporated by reference in such
Registration Statement or such Prospectus (or any amendment thereof or
supplement thereto).
(c) 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
prospects of the Company whether or not arising in the ordinary course of
business and (B) there have been no transactions entered into by the
Company which are material, other than those in the ordinary course of
business.
(d) This Agreement has been, and the Pooling and Servicing Agreement,
when executed and delivered as contemplated hereby and thereby will have
been, duly executed and delivered by the Company and each constitutes, or
will constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against the Company 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).
(e) At the applicable Closing Date, each applicable Terms Agreement
will have been duly authorized, executed and delivered by the Company and
will be a legal, valid and binding obligation of the Company enforceable in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance 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).
(f) The issuance of the Certificates has been duly authorized by the
Company and, when such Certificates are executed and authenticated in
accordance with the Pooling and Servicing Agreement 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 Pooling and Servicing Agreement. The Certificates
are in all material respects in the form contemplated by the Pooling and
Servicing Agreement.
(g) Neither the Company nor the Trust Fund is or, as a result of the
offer and sale of the Certificates as contemplated in this Agreement will
become, an "investment company" as defined in the Investment Company Act of
1940, as amended (the "Investment Company Act"), or an "affiliated person"
of any such "investment company" that is registered or is required to be
registered under the Investment Company Act (or an "affiliated person" of
any such "affiliated person"), as such terms are defined in the Investment
Company Act.
(h) The representations and warranties made by the Company in the
Pooling and Servicing Agreement and made in any Officer's Certificate of
the Company delivered pursuant to the Pooling and Servicing Agreement will
be true and correct at the time made and on the Closing Date.
3. Purchase, Sale and Delivery of Certificates. Delivery of and
payment for the Certificates shall be made at your office or at such other
location as you shall make known at such time as shall be specified in the
applicable Terms Agreement, each such time being herein referred to as a
"Closing Date." Delivery of the Certificates shall be made by the Company
to the Underwriters against payment of the purchase price specified in the
applicable Terms Agreement in Federal Funds by wire or check. Unless
delivery is made through the facilities of the Depository Trust Company,
the Certificates so to be delivered will be in definitive, fully registered
form, in such denominations and registered in such names as you request,
and will be made available for inspection and packaging at your office at
least twenty-four hours prior to the applicable Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Certificates for sale to the public as set forth in the
Prospectus.
5. Covenants of the Company. The Company covenants and agrees with you
and the several Underwriters participating in the Offering of any Series of
Certificates that:
(a) In connection with the execution of each Terms Agreement, the
Company will prepare a Prospectus Supplement to be filed under the Act
setting forth the principal amount of Certificates covered thereby and
their terms not otherwise specified in the Prospectus, the price at which
the Certificates are to be purchased by the Underwriters from the Company,
either the initial public offering price or the method by which the price
at which the Certificates are to be sold will be determined, the selling
concession and reallowance, if any, any delayed delivery arrangements, and
such other information as you and the Company deem appropriate in
connection with the offering of the Certificates, but the Company will not
file any amendments to the Registration Statement or any amendments or
supplements to the Prospectus, unless it shall first have delivered copies
of such amendments or supplements to you, and you shall not have objected
thereto promptly after receipt thereof. The Company will advise you or your
counsel promptly (i) when notice is received from the Commission that any
post-effective amendment to the Registration Statement has become or will
become effective, and (ii) of any order or communication suspending or
preventing, or threatening to suspend or prevent, the offer and sale of the
Certificates, or of any proceedings or examinations that may lead to such
an order or communication, whether by or of the Commission or any authority
administering any state securities or Blue Sky law, as soon as the Company
is advised thereof, and will use its best efforts to prevent the issuance of
any such order or communication and to obtain as soon as possible its
lifting, if issued.
(b) The Company will cause any Computational Materials and any
Structural Term Sheets (each as defined in Section 8 below) with respect to
each Series of Certificates that are delivered by the Underwriters to the
Company pursuant to Section 8 to be filed with the Commission on a Current
Report on Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") on the
business day immediately following the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the
Company by any of the Underwriters prior to 10:30 a.m. (and will use its
best efforts to cause such Computational Materials and Structural Term
Sheets to be so filed prior to 2:00 p.m., New York time, on such business
day), and will promptly advise you when such Current Report has been so
filed. The Company will cause one Collateral Term Sheet (as defined in
Section 9 below) with respect to an Offering of a Series that is delivered
by any of the Underwriters to the Company in accordance with the provisions
of Section 9 to be filed with the Commission on a Current Report pursuant
to Rule 13a-11 under the Exchange Act on the business day immediately
following the day on which such Collateral Term Sheet is delivered to
counsel for the Company by any of the Underwriters prior to 10:30 a.m. In
addition, if at any time prior to the availability of the related
Prospectus Supplement, any of the Underwriters has delivered to any
prospective investor a subsequent Collateral Term Sheet that reflects, in
the reasonable judgment of such Underwriter and the Company, a material
change in the characteristics of the XXXx for the related Series from those
on which a Collateral Term Sheet with respect to the related Series
previously filed with the Commission was based, the Company will cause any
such Collateral Term Sheet that is delivered by such Underwriter to the
Company in accordance with the provisions of Section 9 to be filed with the
Commission on a Current Report on the business day immediately following
the day on which such Collateral Term Sheet is delivered to counsel for the
Company by such Underwriter prior to 2:00 p.m. In each case, the Company
will promptly advise you when such Current Report has been so filed.
Notwithstanding the four preceding sentences, the Company shall have no
obligation to file any materials provided by any of the Underwriters
pursuant to Sections 8 and 9 which (i) in the reasonable determination of
the Company are not required to be filed pursuant to the Xxxxxx Letters or
the PSA Letter (each as defined in Section 8 below), or (ii) contain
erroneous information or contain any untrue statement of a material fact
or, when read in conjunction with the Prospectus and Prospectus Supplement,
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; it being understood, however,
that the Company shall have no obligation to review or pass upon the
accuracy or adequacy of, or to correct, any Computational Materials or ABS
Term Sheets (as defined in Section 9 below) provided by such Underwriter to
the Company pursuant to Section 8 or Section 9 hereof. The Company shall
give notice to you and such Underwriter of its determination not to file
any materials pursuant to clause (i) of the preceding sentence and agrees
to file such materials if such Underwriter or you reasonably object to such
determination within one business day after receipt of such notice.
(c) If at any time when a prospectus relating to the Certificates is
required to be delivered under the Act any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Act, the Company promptly
will prepare and file with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will effect
such compliance; provided, however, that the Company will not be required
to file any such amendment or supplement with respect to any Computational
Materials, Structural Term Sheets or Collateral Term Sheets incorporated by
reference in the Prospectus other than any amendments or supplements of
such Computational Materials or Structural Term Sheets that are furnished
to the Company by the Underwriter pursuant to Section 8(e) hereof or any
amendments or supplements of such Collateral Term Sheets that are furnished
to the Company by the Underwriter pursuant to Section 9(d) hereof which are
required to be filed in accordance therewith.
(d) With respect to each Series of Certificates, the Company will
make generally available to the holders of the Certificates and will
deliver to you, in each case as soon as practicable, an earnings statement
covering the twelve-month period beginning after the date of the Terms
Agreement in respect of such series of Certificates, which will satisfy the
provisions of Section 11(a) of the Act with respect to the Certificates.
(e) The Company will furnish to you copies of the Registration
Statement (two of which will be signed and will include all documents and
exhibits thereto or incorporated by reference therein), each related
preliminary prospectus, the Prospectus, and all amendments and supplements
to such documents, in each case as soon as available and in such quantities
as you request.
(f) The Company will arrange for the qualification of the
Certificates for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as you reasonably designate
and will continue such qualifications in effect so long as reasonably
required for the distribution; provided, however, that the Company shall
not be required to qualify to do business in any jurisdiction where it is
not qualified on the date of the related Terms Agreement or to take any
action which would subject it to general or unlimited service of process in
any jurisdiction in which it is not, on the date of the related Terms
Agreement, subject to such service of process.
(g) The Company will pay all expenses incidental to the performance
of its obligations under this Agreement and any Terms Agreement and will
reimburse the Underwriters for any expenses (including fees and
disbursements of counsel and accountants) incurred by them in connection
with qualification of the Certificates and determination of their
eligibility for investment under the laws of such jurisdictions as you
designate and the printing of memoranda relating thereto, for any fees
charged by the nationally recognized statistical 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 preliminary prospectuses to the
Underwriters.
(h) 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 Company will file or cause to be filed, on a timely and
complete basis, all documents that are required to be filed by the Company
with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange
Act.
(i) So long as the Certificates of a Series shall be outstanding, the
Company will deliver to you the annual statement of compliance delivered to
the Trustee pursuant to the Pooling and Servicing Agreement and the annual
statement of a firm of independent public accountants furnished to the
Trustee pursuant to the Pooling and Servicing Agreement as soon as such
statements are furnished to the Trustee.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters named in any Terms Agreement to purchase and pay for
the Certificates will be subject to the accuracy of the representations and
warranties on the part of the Company as of the date hereof, the date of
the applicable Terms Agreement and the applicable Closing Date, to the
accuracy of the statements made in any officers' certificates (each an
"Officer's Certificate") pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a)(i) At the time the applicable Terms Agreement is executed,
Deloitte & Touche 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, stating in effect that using the assumptions and methodology used
by the Company, all of which shall be described in such letter or the
Prospectus Supplement, they have recalculated such numbers, percentages and
weighted average lives set forth in the Prospectus as you may reasonably
request, compared the results of their calculations to the corresponding
items in the Prospectus, and found each such number, percentage, and
weighted average life set forth in the Prospectus to be in agreement with
the results of such calculations. To the extent historical financial
delinquency or related information is included with respect to one or more
master servicers, such letter or letters shall also relate to such
information.
(a)(ii) At the Closing Date, _________________ 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
clause (a)(i), to a portion of the information set forth on the XXX
Schedule attached to the Pooling and Servicing Agreement and the
characteristics of the XXXx, as presented in the Prospectus Supplement or
the Form 8-K relating thereto, or if a letter relating to the same
information is provided to the Trustee, indicating that you are entitled to
rely upon its letter to the Trustee.
(b) 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 or any of its
affiliates the effect of which, in any case, is, in your 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 Company under the Act and
the Exchange Act prior to the sale of the Certificates shall have been duly
taken or made; and prior to the applicable Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted, or
to the knowledge of the Company or you, shall be contemplated by the
Commission or by any authority administering any state securities or Blue
Sky law.
(c) Unless otherwise specified in any applicable Terms Agreement for
a Series, the Certificates shall be rated in one of the four highest grades
by one or more nationally recognized statistical rating agencies specified
in said Terms Agreement.
(d) You shall have received the opinion of counsel for the Company,
dated the applicable Closing Date, to the effect that:
(i) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its assets and conduct its
business as described in the Prospectus, and the Company is duly qualified
as a foreign corporation to transact business and is in good standing under
the laws of the State of New York.
(ii) Each of this Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Company and
assuming due and valid authorization and execution by the other parties
thereto, constitutes the legal, valid and binding obligation of the Company
enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, moratorium, fraudulent conveyance and other similar
laws relating to or affecting creditors' rights generally and court
decisions with respect thereto and to the application of equitable
principles in any proceeding, whether at law or in equity. Such counsel's
opinion may be qualified, in the case of the indemnity provisions in this
Agreement, to applicable law or judicial policy.
(iii) The Pooling and Servicing Agreement has been duly and
validly authorized, executed and delivered by the Company and assuming due
and valid authorization and execution by the other parties thereto,
constitutes the valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally and court decisions with respect
thereto and to the application of equitable principles in any proceeding,
whether at law or in equity.
(iv) The Certificates are in a form authorized by the Pooling
and Servicing Agreement, have been duly and validly authorized by all
necessary corporate action and, when executed and authenticated as
specified in the Pooling and Servicing Agreement and delivered against
payment pursuant to this Agreement and the related Terms Agreement, will be
validly issued and outstanding; and the Certificates will be entitled to
the benefits of the Pooling and Servicing Agreement.
(v) The Registration Statement has become effective under the
Act, and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and Regulations
thereunder; such counsel has no reason to believe that either the
Registration Statement as of its effective date contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the statements therein
not misleading, or the Prospectus as of the date of any Terms Agreement
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion as to the financial statements or other financial data or notes
thereto or any statistical or tabular data contained or incorporated by
reference in the Registration Statement or the Prospectus).
(vi) The statements in the Prospectus and Prospectus Supplement
under the heading "Federal Income Tax Consequences," to the extent that
they constitute matters of law or legal conclusions, have been prepared or
reviewed by such counsel and provide a fair summary of such law or
conclusions; the statements in the Prospectus to the extent modified by the
statements in the Prospectus Supplement under the headings, "Description of
the Certificates" and Description of The Pooling and Servicing Agreement"
and such other headings as you may request, insofar as such statements
constitute a summary of the proposed transaction and of the provisions of
the Certificates or the Pooling and Servicing Agreement, constitute a fair
and accurate summary of such transaction and provisions.
(vii) Neither the Company nor the Trust Fund is, or as a result
of the offer and sale of the Certificates as contemplated in the Prospectus
and in this Agreement will become, an "investment company" as defined in
the Investment Company Act, or an "affiliated person" of any such
"investment company" that is registered or is required to be registered
under the Investment Company Act (or an "affiliated person" of any such
"affiliated person"), as such terms are defined in the Investment Company
Act.
(viii) The Certificates offered pursuant to the Registration
Statement and indicated as such in the Prospectus Supplement will be
mortgage related securities, as defined in Section 3(a)(41) of the Exchange
Act, so long as such Certificates are rated in one of the two highest grades
by at least one nationally recognized statistical rating agency.
(ix) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
Each opinion also shall relate to such other matters as may be
specified in the related Terms Agreement or as to which you reasonably may
request. In rendering any such opinion, counsel for the Company may rely on
certificates of responsible officers of the Company, the Trustee, and
public officials or, as to matters of law other than New York or Federal
law, on opinions of other counsel (copies of which opinions shall be
delivered to you), provided that, in cases of opinions of other counsel,
counsel for the Company shall include in its opinion a statement of its
belief that both it and you are justified in relying on such opinions.
(e) You shall have received from counsel for the Company a letter,
dated as of the Closing Date, stating that you may rely on the opinions
delivered by such firm under the Pooling and Servicing Agreement and to the
rating agency or agencies rating the Certificates as if such opinions were
addressed directly to you (copies of which opinions shall be delivered to
you).
(f) You shall have received from counsel for the Underwriters, if
such counsel is different from counsel to the Company, such opinion or
opinions, dated as of the Closing Date, with respect to the validity of the
Certificates, the Registration Statement, the Prospectus and other related
matters as the Underwriters may require, and the Company shall have
furnished to such counsel such documents as they may have requested from it
for the purpose of enabling them to pass upon such matters.
(g) You shall have received Officer's Certificates signed by such of
the principal executive, financial and accounting officers of the Company
as you may request, dated as of the Closing Date, in which such officers,
to the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this Agreement
are true and correct; that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Date; that 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; that, 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; that except as otherwise stated in the Prospectus, there are
no material actions, suits or proceedings pending before any court or
governmental agency, authority or body or, to their knowledge, threatened,
affecting the Company or the transactions contemplated by this Agreement;
and that attached thereto are true and correct copies of a letter or
letters from the one or more nationally recognized statistical rating
agencies specified in the applicable Terms Agreement confirming that,
unless otherwise specified in said Terms Agreement, the Certificates have
been rated in one of the four highest grades by each of such agencies and
that such rating has not been lowered since the date of such letter.
The Company will furnish you with such conformed copies of such
opinions, certificates, letters and documents as you reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects with respect to a particular
Offering when and as provided in this Agreement and the related Terms
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement and the related Terms Agreement shall not be in
all material respects reasonably satisfactory in form and substance to you,
this Agreement (with respect to the related Offering) and the related Terms
Agreement and all obligations of the Underwriters hereunder (with respect
to the related Offering) and thereunder may be canceled at, or at any time
prior to, the related 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.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act
against any and all losses, claims, damages, liabilities and expenses
whatsoever (including but not limited to attorneys' fees and any and all
expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever,
and any and all amounts paid in settlement of any claim or litigation),
joint or several, to which they or any of them may become subject under the
Act, the Exchange Act, or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement relating to the applicable
Series of Certificates (the "Applicable Registration Statement") as it
became effective or in any amendment or supplement thereof, or in the
Applicable Registration Statement or the related Prospectus, or in any
amendment thereof, or arise out of or are based upon the omission or
alleged omission (in the case of any Computational Materials or ABS Term
Sheets in respect of which the Company agrees to indemnify the
Underwriters, as set forth below, when such are read in conjunction with
the related Prospectus and Prospectus Supplement) to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that (i) the Company
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein (A) in reliance upon and in conformity with written information
furnished to the Company as herein stated by or on behalf of the
Underwriters specifically for use in connection with the preparation
thereof or (B) in any Current Report or any amendment or supplement
thereof, except to the extent that any untrue statement or alleged untrue
statement therein or omission therefrom results (or is alleged to have
resulted) directly from an error (a "XXX Pool Error") in the information
concerning the characteristics of the XXXx furnished by the Company to the
Underwriters in writing or by electronic transmission that was used in the
preparation of either (x) any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) included in such Current Report (or
amendment or supplement thereof) or (y) any written or electronic materials
furnished to prospective investors on which the Computational Materials (or
amendments or supplements) were based, (ii) such indemnity with respect to
any Corrected Statement (as defined below) in such Prospectus (or Prospectus
Supplement thereto) shall not inure to the benefit of the Underwriters (or
any person controlling any Underwriter) from whom the person asserting any
loss, claim, damage or liability purchased the Certificates of the related
Series that are the subject thereof if such person did not receive a copy of
a Prospectus Supplement to such Prospectus at or prior to the confirmation
of the sale of such Certificates and the untrue statement or omission of a
material fact contained in such Prospectus (or Prospectus Supplement
thereto) was corrected (a "Corrected Statement") in such other supplement
and such supplement was furnished by the Company to the Underwriters prior
to the delivery of such confirmation, and (iii) such indemnity with respect
to any XXX Pool Error shall not inure to the benefit of the Underwriters (or
any person controlling any Underwriter) from whom the person asserting any
loss, claim, damage or liability received any Computational Materials (or
any written or electronic materials on which the Computational Materials are
based) or ABS Term Sheets that were prepared on the basis of such XXX Error,
if, prior to the time of confirmation of the sale of the applicable Series
of Certificates to such person, the Company notified the Underwriters in
writing of the XXX Pool Error or provided in written or electronic form
information superseding or correcting such XXX Pool Error (in any such case,
a "Corrected XXX Pool Error"), and the Underwriters failed to notify such
person thereof or to deliver to such person corrected Computational
Materials (or underlying written or electronic materials) or ABS Term
Sheets. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) The Underwriters severally, and not jointly, agree to indemnify
and hold harmless the Company, each of the directors of the Company, each
of the officers of the Company who shall have signed the Applicable
Registration Statement, and each other person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, against any losses, claims, damages, liabilities and expenses
whatsoever (including but not limited to attorneys' fees and any and all
expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever,
and any and all amounts paid in settlement of any claim or litigation),
joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or otherwise, insofar as such losses, liabilities,
claims, damages or expenses (or actions in respect thereof) arise out of or
are based upon (A) any untrue statement or alleged untrue statement of a
material fact contained in the Applicable Registration Statement, as
originally filed or any amendment thereof, or any related preliminary
prospectus or the Prospectus, or in any amendment thereof 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 necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that any such loss, claim, damage, liability or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance
upon and in conformity with written information furnished to the Company, by
or on behalf of such Underwriter expressly for use therein; or (B) any
Computational Materials or ABS Term Sheets (or amendments or supplements
thereof) furnished to the Company by such Underwriter pursuant to Section 8
and incorporated by reference in such Registration Statement or the related
Prospectus, Prospectus Supplement or any amendment or supplement thereof
(except that no such indemnity shall be available for any losses, claims,
damages or liabilities, or actions in respect thereof resulting from any XXX
Pool Error, other than a Corrected XXX Pool Error). This indemnity will be
in addition to any liability which the Underwriters may otherwise have. The
Company acknowledges that, unless otherwise set forth in the applicable
Terms Agreement, the statements set forth in the last paragraph of the cover
page and under the caption "Method of Distribution" and the stabilization
legend required by Item 502(d)(1) under Regulation S-K of the Act included
in the Prospectus Supplement relating to a Series of Certificates constitute
the only information furnished in writing by or on behalf of any Underwriter
expressly for use in the Applicable Registration Statement or the Prospectus
or in any amendment thereof or supplement thereto, as the case may be (other
than any Computational Materials or ABS Term Sheets (or amendments or
supplements thereof) furnished to the Company by such Underwriter), and each
Underwriter confirms, on its behalf, that such statements are correct.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the commencement
thereof (but the failure so to notify an indemnifying party shall not
relieve it from any liability which it may have under this Section 7 except
to the extent that it has been prejudiced in any material respect by such
failure or from any liability which it may have otherwise). In case any
such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have
the right to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such indemnified
party or parties unless (i) the employment of such counsel shall have been
authorized in writing by one of the indemnifying parties in connection with
the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them which are different from or additional
to those available to one or all of the indemnifying parties (in which case
the indemnifying parties shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by the indemnifying parties.
Anything in this subsection to the contrary notwithstanding, an indemnifying
party shall not be liable for any settlement of any claim or action effected
without its written consent; provided, however, that such consent was not
unreasonably withheld.
(d) In order to provide for contribution in circumstances in which
the indemnification provided for in Section 7 hereof is for any reason held
to be unavailable, on grounds of public policy or otherwise, from the
Company or the Underwriters or is insufficient to hold harmless a party
indemnified thereunder, the Company and the Underwriters shall contribute
to the aggregate losses, claims, damages, liabilities and expenses of the
nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and
any amount paid in settlement of, any action, suit or proceeding or any
claims asserted, but after deducting in the case of losses, claims,
damages, liabilities and expenses suffered by the Company any contribution
received by the Company from persons, other than the Underwriters, who may
also be liable for contribution, including persons who control the Company
within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, officers of the Company who signed the Applicable
Registration Statement and directors of the Company) to which the Company
and the Underwriters may be subject (i) in the case of any losses, claims,
damages and liabilities (or actions in respect thereof) which do not arise
out of or are not based upon any untrue statement or omission of a material
fact in any Computational Materials or ABS Term Sheets (or any amendments
or supplements thereof), in such proportions as is appropriate to reflect
the relative benefits received by the Company on one hand and the
Underwriters on the other from the Offering of the Certificates as to which
such loss, liability, claim, damage or expense is claimed to arise or, if
such allocation is not permitted by applicable law or indemnification is
not available as a result of the indemnifying party not having received
notice as provided in Section 7(c) hereof, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but
also the relative fault of the Company on one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations or (ii) in the case of any losses,
claims, damages and liabilities (or actions in respect thereof) which arise
out of or are based upon any untrue statement or omission of a material
fact in any Computational Materials or ABS Term Sheets (or any amendments
or supplements thereof) or in any written or electronic materials
distributed to prospective investors on which the Computational Materials
are based, in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and the Underwriter that furnished
such Computational Materials or ABS Term Sheets 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; provided, however, that in no case shall
such Underwriter be responsible under this subparagraph (ii) for any amount
in excess of the aggregate Purchase Price for the Offered Certificates.
The relative benefits received by the Company on one hand and
the Underwriters on the other shall be deemed to be in the same proportion
as (x) the total proceeds from the Offering (net of underwriting discounts
and commissions but before deducting expenses) received by the Company and
(y) the underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the Terms Agreement in respect of
the Offering of the Certificates as to which such loss, liability, claim,
damage or expense is claimed to arise. The relative fault of the Company on
one hand and the Underwriters on the other shall be determined by reference
to, among other things, (A) in the case of clause (i) of the preceding
paragraph, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on one hand or the Underwriters on the
other, (B) in the case of clause (ii) of the preceding paragraph, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to any untrue statement or
omission of a material fact in any Computational Materials or ABS Term
Sheets (or any amendments or supplements thereof) or in any written or
electronic materials distributed by the applicable Underwriter to
prospective investors on which the Computational Materials are based, and
(C) in the case of either clause (i) or clause (ii) of the preceding
paragraph, the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 7(d), (x) except as otherwise provided in Section
7(d)(ii), in no case shall the Underwriters be liable or responsible for any
amount in excess of the underwriting discount set forth in the Terms
Agreement relating to the Certificates as to which such losses, claims,
damages, liabilities or expenses are claimed to arise, and (y) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section
7(d), each person, if any, who controls any Underwriter within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act shall have the
same rights to contribution as such Underwriter, and each person, if any,
who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, each officer of the Company who shall
have signed the Applicable Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in each case to clauses (i) and (ii) of this Section 7(d). Any party
entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect
of which a claim for contribution may be made against another party or
parties under this Section 7(d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any obligation it or they may have under this Section 7(d) or
otherwise. No party shall be liable for contribution with respect to any
action or claim settled without its consent; provided, however, that such
consent was not unreasonably withheld.
8. Computational Materials and Structural Term Sheets. (a) Not
later than 2:00 p.m., New York time, on the business day before the date on
which the Current Report relating to the Certificates of a Series is
required to be filed by the Company with the Commission pursuant to Section
5(b) hereof, you and any other applicable Underwriter shall deliver to the
Company, and unless otherwise agreed to by the Company, in a form reasonably
convertible to an XXXXX filing format, a copy of all materials provided by
the Underwriters to prospective investors in such Certificates which
constitute (i) "Computational Materials, within the meaning of the no-action
letter dated May 20, 1994 issued by the Division of Corporation Finance of
the Commission to Xxxxxx, Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx
& Co. Incorporated, and Xxxxxx Structured Asset Corporation and the
no-action letter dated May 27, 1994 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (together,
the "Xxxxxx Letters") and the filing of such material is a condition of the
relief granted in such letter (such materials being the "Computational
Materials"), and (ii) "Structural Term Sheets" within the meaning of the
no-action letter dated February 17, 1995 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(the "PSA Letter") and the filing of such material is a condition of the
relief granted in such letter (such materials being the "Structural Term
Sheets"). Each delivery of Computational Materials and Structural Term
Sheets to the Company by you and any other applicable Underwriter pursuant
to this paragraph (a) shall be effected by delivering a copy of such
materials to counsel for the Company on behalf of the Company at the address
specified by the Company and one copy of such materials to the Company.
(b) You and each other Underwriter, by virtue of its
having executed and delivered the related Terms Agreement, which shall
incorporate this Section 8(b) by reference, represents and warrants to and
agrees with the Company, as of the date of the related Terms Agreement and
as of the Closing Date, that:
(i) the Computational Materials furnished to the Company
pursuant to Section 8(a) constitute (either in original, aggregated or
consolidated form) all of the materials furnished to prospective investors
by such Underwriter prior to the time of delivery thereof to the Company
that are required to be filed with the Commission with respect to the
Offering of the Certificates in accordance with the Xxxxxx Letters, and
such Computational Materials comply with the requirements of the Xxxxxx
Letters;
(ii) the Structural Term Sheets furnished to the Company
pursuant to Section 8(a) constitute all of the materials furnished to
prospective investors by such Underwriter prior to the time of delivery
thereof to the Company that are required to be filed with the Commission as
"Structural Term Sheets" with respect to the related Offering of the
Certificates in accordance with the PSA Letter, and such Structural Term
Sheets comply with the requirements of the PSA Letter;
(iii) on the date any such Computational Materials or
Structural Term Sheets with respect to the Offering of the Certificates (or
any written or electronic materials furnished to prospective investors on
which the Computational Materials are based) were last furnished to each
prospective investor and on the date of delivery thereof to the Company
pursuant to Section 8(a) and on the related Closing Date, such Computational
Materials (or such other materials) or Structural Term Sheets did not and
will not include any untrue statement of a material fact or, when read in
conjunction with the related Prospectus and Prospectus Supplement, omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and
(iv) all Computational Materials (or underlying materials
distributed to prospective investors on which the Computational Materials
were based) or Structural Term Sheets furnished to prospective investors
contained and will contain a legend, prominently displayed on the first
page thereof, to the effect that the Company has not prepared, reviewed or
participated in the preparation of such materials and is not responsible
for the accuracy thereof.
Notwithstanding the foregoing, you and each such Underwriter make no
representation or warranty as to whether any Computational Materials or
Structural Term Sheets (or any written or electronic materials on which the
Computational Materials are based) included or will include any untrue
statement resulting directly from any XXX Pool Error (except any Corrected
XXX Pool Error, with respect to materials prepared after the receipt by the
Underwriters from the Company of notice of such Corrected XXX Pool Error or
materials superseding or correcting such Corrected XXX Pool Error).
(c) Each Underwriter delivering Computational Materials
shall cause a firm of public accountants to furnish to the Company a
letter, dated as of the date on which such Underwriter delivers any
Computational Materials (which term shall be deemed to include, for
purposes of this paragraph (c), calculated statistical information
delivered to prospective investors in the form of a Structural Term Sheet)
to the Company pursuant to Section 8(a), in form and substance satisfactory
to the Company, stating in effect that they have verified the mathematical
accuracy of any calculations performed by such Underwriter and set forth in
such Computational Materials.
(d) The Underwriters acknowledge and agree that the
Company has not authorized and will not authorize the distribution of any
Computational Materials (or any written or electronic materials on which
the Computational Materials are based) or Structural Term Sheets to any
particular prospective investor, and agrees that any Computational
Materials or Structural Term Sheets with respect to any Series of
Certificates furnished to prospective investors shall include a disclaimer
in the form described in paragraph (b) (iv) above. The Underwriters agree
that they will not represent to prospective investors that any
Computational Materials or Structural Term Sheets were prepared or
disseminated on behalf of the Company.
(e) If, at any time when a prospectus relating to the
Certificates of a Series is required to be delivered under the Act, it
shall be necessary to amend or supplement the related Prospectus or
Prospectus Supplement as a result of an untrue statement of a material fact
contained in any Computational Materials or Structural Term Sheets provided
by an Underwriter pursuant to this Section 8 or the omission to state
therein a material fact required, when considered in conjunction with the
related Prospectus and Prospectus Supplement, to be stated therein or
necessary to make the statements therein, when read in conjunction with the
related Prospectus and Prospectus Supplement, not misleading, or if it shall
be necessary to amend or supplement any Current Report relating to any
Computational Materials or Structural Term Sheets to comply with the Act or
the rules thereunder, such Underwriter promptly will prepare and furnish to
the Company for filing with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will effect
such compliance. Such Underwriter will deliver an Officer's Certificate to
the Company representing and warranting to the Company that, as of the date
of delivery of such amendment or supplement to the Company, such amendment
or supplement will not include any untrue statement of a material fact or,
when read in conjunction with the related Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however,
that such Underwriter will make no representation or warranty as to whether
any such amendment or supplement will include any untrue statement resulting
directly from any XXX Pool Error (except any Corrected XXX Pool Error, with
respect to any such amendment or supplement prepared after the receipt by
such Underwriter from the Company of notice of such Corrected XXX Pool Error
or materials superseding or correcting such Corrected XXX Pool Error). The
Company shall have no obligation to file such amendment or supplement if (i)
the Company determines that such amendment or supplement contains any untrue
statement of a material fact or, when read in conjunction with the related
Prospectus and Prospectus Supplement, omits to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; it being understood, however, that the Company shall have no
obligation to review or pass upon the accuracy or adequacy of, or to
correct, any such amendment or supplement provided by such Underwriter to
the Company pursuant to this paragraph (e) or (ii) the Company reasonably
determines that such filing is not required under the Act and such
Underwriter does not object as provided below. The Company shall give notice
to such Underwriter of its determination not to file an amendment or
supplement pursuant to clause (ii) of the preceding sentence and agrees to
file such amendment or supplement if such Underwriter reasonably objects to
such determination within one business day after receipt of such notice.
9. Collateral Term Sheets. (a) Prior to the delivery of any
"Collateral Term Sheet" within the meaning of the PSA Letter, the filing of
which material is a condition of the relief granted in such letter (such
material being the "Collateral Term Sheets"), to a prospective investor in
the Certificates, the applicable Underwriter shall notify the Company and
its counsel by telephone of its intention to deliver such materials and the
approximate date on which the first such delivery of such materials is
expected to occur. Not later than 10:30 a.m., New York time, on the
business day immediately following the date on which any Collateral Term
Sheet was first delivered to a prospective investor in the Certificates of
an offered series, such applicable Underwriter shall deliver to the
Company, and unless otherwise agreed to by the Company, in a form
reasonably convertible to an XXXXX format, a complete copy of all materials
provided by such Underwriter to prospective investors in such Certificates
which constitute "Collateral Term Sheets." Each delivery of a Collateral
Term Sheet to the Company pursuant to this paragraph (a) shall be effected
by delivering a copy of such materials to counsel for the Company on behalf
of the Company at the address specified by the Company and one copy of such
materials to the Company. (Collateral Term Sheets and Structural Term
Sheets are, together, referred to herein as "ABS Term Sheets.") At the time
of each such delivery, such Underwriter shall indicate in writing
that the materials being delivered constitute Collateral Term Sheets, and,
if there has been any prior such delivery with respect to the related
Series, shall indicate whether such materials differ in any material
respect from any Collateral Term Sheets previously delivered to the Company
with respect to such Series pursuant to this Section 9(a) as a result of
the occurrence of a material change in the characteristics of the related
XXX.
(b) You and each other Underwriter, by virtue of its
having executed and delivered the related Terms Agreement, which shall
incorporate this Section 9(b) by reference, represents and warrants to and
agrees with the Company as of the date of the related Terms Agreement and
as of the Closing Date, that:
(i) The Collateral Term Sheets furnished to the Company
pursuant to Section 9(a) constitute all of the materials furnished to
prospective investors by such Underwriter prior to time of delivery thereof
to the Company that are required to be filed with the Commission as
"Collateral Term Sheets" with respect to the related Offering of the
Certificates in accordance with the PSA Letter, and such Collateral Term
Sheets comply with the requirements of the PSA Letter;
(ii) On the date any such Collateral Term Sheets with respect
to the Offering of the Certificates were last furnished to each prospective
investor and on the date of delivery thereof to the Company pursuant to
Section 9(a) and on the related Closing Date, such Collateral Term Sheets
did not and will not include any untrue statement of a material fact or,
when read in conjunction with the Prospectus and Prospectus Supplement,
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and
(iii) such Underwriter has not represented to any prospective
investor that any Collateral Term Sheets with respect to any Series were
prepared or disseminated on behalf of the Company, and, except as otherwise
disclosed by such Underwriter to the Company in writing prior to the date
hereof, all Collateral Term Sheets previously furnished to prospective
investors included a disclaimer to the effect set forth in Section
8(b)(iv).
Notwithstanding the foregoing, you and each such Underwriter make no
representation or warranty as to whether any Collateral Term Sheet included
or will include any untrue statement or material omission resulting
directly from any XXX Pool Error (except any Corrected XXX Pool Error, with
respect to materials prepared after the receipt by such Underwriter from
the Company of notice of such Corrected XXX Pool Error or materials
superseding or correcting such Corrected XXX Pool Error).
(c) Each Underwriter delivering Collateral Term Sheets
acknowledges and agrees that any Collateral Term Sheets with respect to any
Series of Certificates furnished to prospective investors from and after
the date hereof shall include a disclaimer to the effect set forth in
Section 8(d) hereof, and to the effect that the information contained in
such materials supersedes the information contained in any prior Collateral
Term Sheet with respect to such Series of Certificates being offered and
will be superseded by the description of the related XXX in the related
Prospectus Supplement. The Underwriters agree that they will not represent
to any prospective investors that any Collateral Term Sheets were prepared
or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the
Certificates of a Series is required to be delivered under the Act, it
shall be necessary to amend or supplement the related Prospectus as a
result of an untrue statement of a material fact contained in any
Collateral Term Sheets provided by an Underwriter pursuant to this Section
9 or the omission to state therein a material fact required, when
considered in conjunction with the related Prospectus and Prospectus
Supplement, to be stated therein or necessary to make the statements
therein, when read in conjunction with the related Prospectus and
Prospectus Supplement, not misleading, or if it shall be necessary to amend
or supplement any Current Report relating to any Collateral Term Sheets to
comply with the Act or the rules thereunder, such Underwriter promptly will
prepare and furnish to the Company for filing with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Such Underwriter will deliver
an Officer's Certificate to the Company representing and warranting to the
Company that, as of the date of delivery of such amendment or supplement to
the Company, such amendment or supplement will not include any untrue
statement of a material fact or, when read in conjunction with the related
Prospectus and Prospectus Supplement, omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, such Underwriter will make no
representation or warranty as to whether any such amendment or supplement
will include any untrue statement resulting directly from any XXX Pool
Error (except any Corrected XXX Pool Error, with respect to any such
amendment or supplement prepared after the receipt by such Underwriter from
the Company of notice of such Corrected XXX Pool Error or materials
superseding or correcting such Corrected XXX Pool Error). The Company shall
have no obligation to file such amendment or supplement if the Company
determines that (i) such amendment or supplement contains any untrue
statement of a material fact or, when read in conjunction with the related
Prospectus and Prospectus Supplement, omits to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; it being understood, however, that the Company shall have
no obligation to review or pass upon the accuracy or adequacy of, or to
correct, any such amendment or supplement provided by such Underwriter to
the Company pursuant to this paragraph (d) or (ii) such filing is not
required under the Act. The Company shall give notice to such Underwriter
of its determination not to file an amendment or supplement pursuant to
clause (ii) of the preceding sentence.
10. Default of Underwriters. If any Underwriter or Underwriters
participating in an Offering of Certificates default in their obligations
to purchase Certificates hereunder and under the Terms Agreement and the
aggregate purchase price of Certificates which such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the
aggregate purchase price of the Certificates then being purchased, you may
make arrangements satisfactory to the Company for the purchase of such
Certificates by other persons, including any of the Underwriters, but if no
such arrangements are made by the Closing Date the non-defaulting
Underwriters shall be obligated severally, in proportion to their
respective total commitments as set forth in the applicable Terms Agreement
(for all classes of Certificates), to purchase the Certificates which such
defaulting Underwriter or Underwriters agreed but failed to purchase. If
any Underwriter or Underwriters so default and the aggregate purchase price
of Certificates with respect to which such default or defaults occur is
more than 10% of the aggregate purchase price of Certificates then being
purchased, and arrangements satisfactory to you and the Company for the
purchase of such Certificates by other persons are not made within 36 hours
after such default, the Terms Agreement as to which such offering relates
will terminate without liability on the part of any non-defaulting
Underwriter or the Company, except as provided in Section 11. As used in
this Agreement, the term "Underwriter" includes any person substituted for
an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties, and other
statements of the Company or its officers and of the several Underwriters
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 result
thereof, made by or on behalf of any Underwriter or the Company or any of
its officers or directors or any controlling person, and will survive
delivery of and payment for the Certificates and any termination of this
Agreement or any Terms Agreement, including any termination pursuant to
Section 10.
12. Termination. You shall have the right to terminate any Terms
Agreement at any time prior to the applicable Closing Date if any domestic
or international event or act or occurrence has materially disrupted, or in
your opinion will in the immediate future materially disrupt, securities
markets; or 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; or if the United States shall
have become involved in a war or major hostilities; or if a banking
moratorium has been declared by a state or Federal authority, or if a
banking moratorium in foreign exchange trading by major international banks
or persons has been declared; or if any new restriction materially and
adversely affecting the distribution of the series of Certificates as to
which such Terms Agreement relates shall have become effective; or if there
shall have been such change in the market for securities in general or in
political, financial or economic conditions as in your judgment would be so
materially adverse as to make it inadvisable to proceed with the Offering,
sale and delivery of the Series of Certificates as to which such Terms
Agreement relates on the terms contemplated in such Terms Agreement. Any
notice of termination pursuant to this Section 12 shall be by telephone,
telex, or telegraph, confirmed in writing by letter.
13. Notices. All communications hereunder will be in writing, and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to you at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
General Counsel or if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx Xxxxxxxxxxx; provided, however, that any notice
to an Underwriter pursuant to Section 7 will be mailed, delivered or
telegraphed to such Underwriter at the address furnished by it.
14. Successors. This Agreement and the Terms Agreement will inure to
the benefit of and be binding upon the parties hereto and thereto, and
their respective successors and the officers and directors and controlling
persons referred to in Section 7, and no other person will have any right
or obligation hereunder or thereunder.
15. Representation of Underwriters. You will act for the several
Underwriters in connection with each Offering of Certificates governed by
this Agreement, and any action under this Agreement and any Terms Agreement
taken by you will be binding upon all the Underwriters identified in such
Terms Agreement.
16. Construction. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York, without
giving effect to principles of conflict of laws.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement among the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
SAMCO MORTGAGE SECURITIES CORP.
By:______________________
Name:
Title:
The foregoing Underwriting Agreement hereby is confirmed and accepted as of
the date first above written.
BEAR, XXXXXXX & CO. INC.
By:_______________________
Title
EXHIBIT A
SAMCO MORTGAGE SECURITIES CORP.
Shared Appreciation Mortgage Pass-Through Certificates
FORM OF TERMS AGREEMENT
Dated: _________, 199_
To: BEAR XXXXXXX [AND _____________]
Re: Underwriting Agreement dated June __, l996
Series Designation: Series 19 __ - __
Class Designation Schedule:
Terms of the Certificates:
-------------------------
Original
Principal Interest Price to
Class Amount Rate Public(1)(2)
----- --------- -------- ------------
----------------------------
(1) Do not include if the Certificates will be offered from time to time by
the Underwriter in negotiated transactions at varying prices to be
determined at the time of sale.
(2) Plus accrued interest, if any, at the applicable rate from _____________ .
Distribution Dates: The __th day of each month or, if such __th day is not a
business day, the next succeeding business day commencing ________________ .
Certificate Rating:
------------------
XXX Assets: The initial amounts to be included in any Reserve Account and
other accounts are as set forth, and the XXXx to be included in the Trust
Fund are as described, in Annex A hereto.
Purchase Price: The aggregate purchase price payable by the Underwriter for
the Certificates covered by this Agreement will be $_________________.
[Purchase price may also be separately stated by class.]
Credit Enhancement:
------------------
[Include pool policies, letters of credit, bonds, subordination and similar
arrangements.]
Closing Date: ______, 19__, ____ a.m., N.Y. Time
The undersigned, agrees, subject to the terms and provisions of the
above-referenced Underwriting Agreement, which is incorporated herein in
its entirety and made a part hereof, to purchase the respective principal
amounts of the Classes of the above-referenced Series of Certificates set
forth [herein] [on Schedule I attached hereto].
SAMCO MORTGAGE SECURITIES CORP.
By: _________________________
Senior Managing Director
[ADDITIONAL UNDERWRITERS]
By: __________________________
Title:
Accepted:
SAMCO MORTGAGE SECURITIES CORP.
By: _________________________
Schedule I (for multiple underwriters)
Underwriters
Name Class Class Class Class Class
Bear, Xxxxxxx $ $ $ $ $
& Co. Inc.
[Other
Underwriters]
----- ----- ----- ----- -----
Total
