FORM OF UNDERWRITING AGREEMENT
Exhibit
1.1
FORM
OF
[Date]
[Name
and
address of Representative to be provided]
Ladies
and Gentlemen:
TBALT
Corp. (the “Depositor”), a Delaware corporation, has authorized the issuance and
sale of [TBW Mortgage Pass-Through Trust
200[ ]-[ ] Mortgage Pass-Through Certificates,
Series 200[ ]-[ ]][TBW] Trust
200[ ]-[ ] Mortgage Backed Notes] (the
“Securities”). The Securities are designated as the
Class
[ ], Class [ ], Class [ ],
[etc.] and Class [ ] [Certificates] [Notes].
Only
the
Class [ ], Class [ ], Class
[ ], [etc.] and Class [ ] [Certificates]
[Notes] (collectively, the “Underwritten Securities”) are being purchased by the
Underwriters named in Schedule A hereto, and the Underwriters are purchasing
only the Underwritten Securities set forth opposite their names in Schedule
A,
except that the amounts purchased by the Underwriters may change in accordance
with Section 10 of this Underwriting Agreement (the “Agreement”). [Name of
Representative] is acting as representative of the several Underwriters and
in
such capacity is hereinafter referred to as the “Representative.” If only one
underwriter is named in Schedule A, the terms “Underwriter,” “Underwriters” and
“Representative” shall refer to that named underwriter.
The
Securities will be issued [under a pooling and servicing agreement (the “Pooling
and Servicing Agreement”)] [pursuant to an indenture (the “Indenture”)] dated as
of [ ] 1,
200[ ], among [ ], [ ],
[etc.] and [ ]. Capitalized but undefined terms shall have the
meanings set forth in the [Pooling and Servicing Agreement] [Indenture or in
the
Transfer and Servicing Agreement (as defined below), as
applicable].
The
[Certificates will evidence fractional undivided interests in the trust fund
(the “Trust”) formed pursuant to the Pooling and Servicing Agreement. The assets
of the Trust will consist] [Notes will represent obligations of the Trust and
will be secured by collateral consisting] primarily of [ ]
pool[s] of fixed and adjustable rate, fully amortizing and balloon mortgage
loans secured by first liens on single-family residential, multifamily,
commercial and mixed use properties. [A form of the Pooling and Servicing
Agreement has been filed as an exhibit] [Forms of the Indenture and the Transfer
and Servicing Agreement have been filed as exhibits] to the Registration
Statement.
The
Securities are more fully described in a Registration Statement that the
Depositor has furnished to the Underwriters.
SECTION
1. Representations
and Warranties of the Depositor and the Seller.
(a) The
Depositor represents and warrants to and agrees with the Underwriters that
as of
the date hereof and as of the Closing Date:
(i) A
Registration Statement on Form S-3 (No.
333-[ ]) relating to
the Underwritten Securities has (i) been prepared by the Depositor in conformity
with the requirements of the Securities Act of 1933, as amended (the “Securities
Act”) and the rules and regulations (the “Regulations”) of the United States
Securities and Exchange Commission (the “Commission”) thereunder, (ii) been
filed with the Commission under the Securities Act and (iii) become effective
and is still effective as of the date hereof under the Securities Act. Copies
of
such Registration Statement have been delivered by the Depositor to the
Underwriters. Such Registration Statement, as of its effective date, and each
amendment thereto to the date of this Agreement, as of its effective date,
including all exhibits thereto, is hereinafter called the “Registration
Statement.” The Depositor proposes to prepare and file with the Commission
pursuant to Rule 424 under the Securities Act a final prospectus dated
[ ],
200[ ] (the “Base Prospectus”), a preliminary prospectus
supplement dated [ ],
200[ ], relating
to the Underwritten Securities (the “Preliminary Prospectus Supplement”) and a
final prospectus supplement dated
[ ],
200[ ], relating to the Underwritten Securities (the
“Prospectus Supplement”). The Base Prospectus and the Preliminary Prospectus
Supplement relating to the Underwritten Securities in the form to be filed
with
the Commission pursuant to Rule 424 are hereinafter together called the
“Preliminary Prospectus,” and the Base Prospectus and the Prospectus Supplement
relating to the Underwritten Securities in the form to be filed with the
Commission pursuant to Rule 424 are hereinafter together called the “Final
Prospectus.” Each of the Preliminary Prospectus and the Final Prospectus is
referred to herein as a “Prospectus.” References made herein to a Prospectus
shall be deemed to refer to and include any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act as of the
date
of such Prospectus, and any reference to any amendment or supplement to the
Final Prospectus shall be deemed to refer to and include any document filed
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) after
the date of the Final Prospectus and incorporated by reference in the Final
Prospectus, and any reference to any amendment to the Registration Statement
shall be deemed to include any report of the Depositor filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective
date
that is incorporated by reference in the Registration Statement. The Commission
has not issued any order preventing or suspending the use of the Final
Prospectus or the effectiveness of the Registration Statement and no proceedings
for such purpose are pending or, to the Depositor’s knowledge, threatened by the
Commission. There are no contracts or documents of the Depositor that are
required to be filed as exhibits to the Registration Statement pursuant to
the
Securities Act or the Regulations which have not been so filed or incorporated
by reference therein on or prior to the effective date of the Registration
Statement. The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied with respect to the Depositor and
the
Registration Statement.
(ii) The
Registration Statement, the Preliminary Prospectus and the Final Prospectus
conform, and any further amendments or supplements to the Registration Statement
or the Final Prospectus will conform when they become effective or are filed
with the Commission, as the case may be, in all material respects to the
requirements of the Securities Act and the Regulations. The Registration
Statement, as of the applicable effective date as to each part of the
Registration Statement, did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading. The Preliminary Prospectus, as
of
its date, did not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the
light of the circumstances under which they were made, not misleading;
provided
that no
representation or warranty is made as to (i) information omitted from the
Preliminary Prospectus but included in the Final Prospectus or (ii) information
contained in or omitted from the Registration Statement or either Prospectus
in
reliance upon and in conformity with written information furnished to the
Depositor in writing by any Underwriter through the Representative expressly
for
use therein, as specified on Exhibit A hereto (the “Underwriters’ Information”).
The Final Prospectus, as of its date, and as amended or supplemented as of
the
Closing Date, does not and will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided
that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement or the Final Prospectus in reliance upon and
in
conformity with the Underwriters’ Information.
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(iii) The
documents incorporated by reference in the Preliminary Prospectus or the Final
Prospectus, as applicable, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and
the
Regulations of the Commission thereunder; and any further documents so filed
and
incorporated by reference in the Prospectus, when such documents become
effective or are filed with the Commission, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the Regulations of the Commission thereunder.
(iv) The
Depositor has been duly organized and is validly existing under the laws of
its
jurisdiction of formation, and is in good standing in all states and
jurisdictions where the character of its assets or the nature of its activities
make such qualification necessary, except where the failure to be so qualified
would not have a material adverse effect on the Depositor. The Depositor has
duly complied with, and its assets, business operations and leaseholds are
in
compliance in all material respects with, the provisions of federal, state
and
local laws, rules, regulations and orders applicable to it and its assets or
the
conduct of its business and it possesses all required licenses, permits,
authorizations and approvals to the extent material to the conduct of its
businesses, the ownership of its properties and its execution, delivery and
performance of this Agreement and the Basic Documents to which it is a
party.
(v) Except
as
disclosed in the Prospectus Supplement, there are no actions, proceedings or
investigations pending with respect to which the Depositor has received service
of process before or threatened by any court, administrative agency or other
tribunal to which the Depositor is a party or of which any of its properties
is
the subject (A) which, if determined adversely to the Depositor, would have
a
material adverse effect on the business or financial condition of the Depositor,
(B) asserting the invalidity of any of the Basic Documents or the Securities,
(C) seeking to prevent the issuance of the Securities or the consummation
by the Depositor of any of the transactions contemplated by any of the Basic
Documents to which it is a party or (D) which might materially and adversely
affect the performance by the Depositor of its obligations under, or the
validity or enforceability of, any of the Basic Documents or the
Securities.
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(vi) This
Agreement has been, and each of the other Basic Documents to which it is a
party, when executed and delivered as contemplated hereby and thereby will
have
been, duly authorized, executed and delivered by the Depositor, and this
Agreement constitutes, and each of the other Basic Documents to which it is
a
party, when executed and delivered as contemplated herein, will constitute
a
legal, valid and binding instrument enforceable against the Depositor in
accordance with its terms, subject, as to enforceability, to the effect of
bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance and
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, and with respect to rights
of
indemnity under any of the Basic Documents, limitations of public policy under
applicable securities law.
(vii) The
execution, delivery and performance by the Depositor of the Basic Documents
to
which it is a party, the consummation of the transactions contemplated hereby
and thereby, and the issuance and delivery of the Securities do not and will
not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is a party,
by
which the Depositor is bound or to which any of the properties or assets of
the
Depositor or any of its subsidiaries is subject, which breach or default would
have a material adverse effect on the business, operations or financial
condition of the Depositor or its ability to perform its obligations under
any
of the Basic Documents to which it is a party, nor will such actions result
in
any violation of the provisions of the certificate of formation or operating
agreement of the Depositor or any statute or any order, rule or regulation
of
any court or governmental agency or body having jurisdiction over the Depositor
or any of its properties or assets, which violation would have a material
adverse effect on the business, operations or financial condition of the
Depositor or its ability to perform its obligations under any of the Basic
Documents to which it is a party.
(viii) The
direction by the Depositor to the [Trustee] to execute, authenticate, issue
and
deliver the Securities has been duly authorized by the Depositor and, assuming
the [Trustee] has been duly authorized to undertake such actions, when executed,
authenticated, issued and delivered by the [Trustee] in accordance with the
[Transfer] [Pooling] [Transfer] and Servicing Agreement [and the Indenture],
the
Securities will be validly issued and outstanding and the holders of the
Securities will be entitled to the rights and benefits of the Securities as
provided by the [Pooling] [Transfer] and Servicing Agreement [and the
Indenture].
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(ix) No
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States is required
for the issuance of the Securities and the sale of the Underwritten Securities
to the Underwriters, or the consummation by the Depositor of the other
transactions contemplated by the Basic Documents to which it is a party, except
(i) such consents, approvals, authorizations, registrations or qualifications
as
may be required under state securities or Blue Sky laws in connection with
the
purchase and distribution of the Underwritten Securities by the Underwriters
or
as have been obtained and (ii) such recordations of assignments of the Mortgage
Loans pursuant to the [Pooling] [Transfer] and Servicing Agreement as have
not
yet been completed.
(x) Immediately
prior to the transfer of the Mortgage Loans contemplated by the [Pooling]
[Transfer] and Servicing Agreement, the Depositor (i) will hold good title
to
the Mortgage Loans conveyed by the Depositor, subject to no liens, mortgages,
charges, encumbrances or other security interest (collectively, “Liens”) that
will not be released simultaneously with such transfer; (ii) will not have
assigned to any person (other than the [Trustee] [Issuer]) any of its right,
title or interest in the Mortgage Loans and (iii) will have the power and
authority under all governmental and regulatory bodies having jurisdiction
over
the ownership of the Mortgage Loans to sell the Mortgage Loans to the [Trustee]
[Issuer] and to sell the Underwritten Securities to the Underwriters. Upon
execution and delivery of the [Pooling] [Transfer] and Servicing Agreement
by
the [Indenture] Trustee, the [Trustee] [Issuer] will have acquired all of the
Depositor’s right, title and interest in and to the Mortgage Loans. Upon
delivery to the Underwriters of the Securities, the Underwriters will have
good
title to the Securities free of any Liens.
(xi) As
of the
Cut-off Date, the Mortgage Loans will conform, in all material respects, to
the
description thereof in the Final Prospectus.
(xii) Neither
the Depositor nor the Trust Fund is an “investment company” within the meaning
of such term under the Investment Company Act of 1940, as amended (the “1940
Act”) and the rules and regulations of the Commission thereunder.
(xiii) At
the
Closing Date, the Underwritten Securities and the [Pooling] [Transfer] and
Servicing Agreement will conform in all material respects to the descriptions
thereof contained in each Prospectus.
(xiv) Any
taxes, fees and other governmental charges in connection with the execution,
delivery and issuance of the Basic Documents and the Securities have been paid
or will be paid at or prior to the Closing Date.
(xv) Since
the
respective dates as of which information is given in the Final 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 Depositor, whether or not arising in
the
ordinary course of business, and (B) there have been no transactions entered
into by the Depositor that are material and have not been disclosed, other
than
those in the ordinary course of business.
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(xvi) As
of
[ ],
200[ ], the Depositor was not an “ineligible issuer” as defined
in Rule 405 under the Securities Act.
(xvii) Any
certificate signed by an officer of the Depositor and delivered to the
Representative or counsel for the Representative in connection with an offering
of the Underwritten Securities shall be deemed to be a representation and
warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section 1 are made.
(xviii) As
of the
date of delivery, all information provided in writing to the Underwriters by
the
Depositor in connection with the issuance and sale of the Underwritten
Securities is true and correct in all material respects or, if there is any
material error in any such information, the Depositor has promptly provided
corrected information to the Underwriters.
(xix) The
Depositor hereby makes to the Underwriters the representations, warranties
and
covenants made by the Depositor in the Basic Documents, as applicable, as of
the
date of the execution and delivery of such agreements, and hereby incorporates
each such representation, warranty and covenant into this Agreement for the
benefit of the Underwriters as if set forth herein.
(b) Xxxxxx,
Xxxx & Xxxxxxxx Mortgage Corp., as seller (the “Seller”) represents and
warrants to and agrees with the Underwriters that as of the date hereof and
the
Closing Date:
(i) As
of the
date thereof and as of the Closing Date, the Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they are made, not misleading.
(ii) The
Seller has been duly organized and is validly existing under the laws of its
jurisdiction of formation, and is in good standing in all states and
jurisdictions where the character of its assets or the nature of its activities
make such qualification necessary, except where the failure to be so qualified
would not have a material adverse effect on the Seller, and has not been known
as or used any other corporate name since 1997 or any fictitious or trade names,
except as was required to conduct business in a state other than its state
of
formation, in which case it used a name substantially similar to its name.
The
Seller has duly complied with, and its assets, business operations and
leaseholds are in compliance in all material respects with, the provisions
of
federal, state and local laws, rules, regulations and orders applicable to
it
and its assets or the conduct of its business and it possesses all required
licenses, permits, authorizations and approvals to the extent material to the
conduct of its businesses, the ownership of its properties and its execution,
delivery and performance of this Agreement and the Basic Documents to which
it
is a party.
(iii) Except
as
disclosed in the Prospectus Supplement, there are no actions, proceedings or
investigations pending with respect to which the Seller has received service
of
process before or threatened by any court, administrative agency or other
tribunal to which the Seller is a party or of which any of its properties is
the
subject (A) which, if determined adversely to the Seller, would have a
material adverse effect on the business or financial condition of the Seller,
(B) asserting the invalidity of any of the Basic Documents or the Securities,
(C) seeking to prevent the issuance of the Securities or the consummation
by the Seller of any of the transactions contemplated by any of the Basic
Documents to which it is a party or (D) which might materially and adversely
affect the performance by the Seller of its obligations under, or the validity
or enforceability of, any of the Basic Documents to which it is a party or
the
Securities.
6
(iv) This
Agreement has been, and each of the other Basic Documents to which it is a
party, when executed and delivered as contemplated hereby and thereby will
have
been, duly authorized, executed and delivered by the Seller, and this Agreement
constitutes, and each of the other Basic Documents to which it is a party,
when
executed and delivered as contemplated herein, will constitute a legal, valid
and binding instrument enforceable against the Seller in accordance with its
terms, subject, as to enforceability, to the effect of bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance and 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, and with respect to rights of indemnity
under any of the Basic Documents, limitations of public policy under applicable
securities law.
(v) The
execution, delivery and performance by the Seller of the Basic Documents to
which it is a party, and the consummation of the transactions contemplated
hereby and thereby, and the issuance and delivery of the Securities do not
and
will not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan
agreement or other agreement or instrument to which the Seller is a party,
by
which the Seller is bound or to which any of the properties or assets of the
Seller or any of its subsidiaries is subject, which breach or violation would
have a material adverse effect on the business, operations or financial
condition of the Seller or its ability to perform its obligations under any
of
the Basic Documents to which it is a party, nor will such actions result in
any
violation of the provisions of any organizational document of the Seller or
any
statute or any order, rule or regulation of any court or governmental agency
or
body having jurisdiction over the Seller or any of its properties or assets,
which breach or violation would have a material adverse effect on the business,
operations or financial condition of the Seller or its ability to perform its
obligations under any of the Basic Documents to which it is a
party.
(vi) Assuming
the [Trustee] has been duly authorized to undertake such actions, when executed,
authenticated, issued and delivered by the [Trustee] in accordance with the
[Pooling] [Transfer] and Servicing Agreement [and the Indenture], the Securities
will be validly issued and outstanding and the holders of the Securities will
be
entitled to the rights and benefits of the Securities as provided by the
[Transfer] [Pooling] and Servicing Agreement [and the Indenture].
(vii) No
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States is required
for the issuance of the Securities and the sale of the Underwritten Securities
to the Underwriters, or the consummation by the Seller of the other transactions
contemplated by the Basic Documents to which it is a party; except (i) such
consents, approvals, authorizations, registrations or qualifications as may
be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Underwritten Securities by the Underwriters or as have
been obtained and (ii) such recordations of assignments of the Mortgage Loans
pursuant to the [Pooling] [Transfer] and Servicing Agreement as have not yet
been completed.
7
(viii) Immediately
prior to the assignment of the Mortgage Loans by the Seller to the Depositor,
the Seller will have good title to, and will be the sole owner of, each Mortgage
Loan free and clear of any pledge, mortgage, lien, security interest or other
encumbrance.
(ix) As
of the
Cut-off Date, the Mortgage Loans will meet, in all material respects, the
eligibility criteria described in the Prospectus and will conform to the
descriptions thereof contained in the Final Prospectus.
(x) The
Seller is not an “investment company” within the meaning of such term under the
1940 Act and the rules and regulations of the Commission
thereunder.
(xi) At
the
Closing Date, the Underwritten Securities and the [Pooling] [Transfer] and
Servicing Agreement [and the Indenture] will conform in all material respects
to
the descriptions thereof contained in each Prospectus.
(xii) Any
taxes, fees and other governmental charges in connection with the execution,
delivery and issuance of the Basic Documents and the Securities have been paid
or will be paid at or prior to the Closing Date.
(xiii) Since
the
respective dates as of which information is given in the Final 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 Seller, whether or not arising in the
ordinary course of business, and (B) there have been no transactions entered
into by the Seller that are material and have not been disclosed, other than
those in the ordinary course of business.
(xiv) Any
certificate signed by an officer of the Seller and delivered to the
Representative or counsel for the Representative in connection with an offering
of the Underwritten Securities shall be deemed to be a representation and
warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section 1 are made.
(xv) As
of the
date of delivery, all information provided in writing to the Underwriters by
the
Seller in connection with the issuance and sale of the Underwritten Securities
is true and correct in all material respects or, if there is any material error
in any such information, the Seller has promptly provided corrected information
to the Underwriters.
8
(xvi) The
Seller hereby makes to the Underwriters the representations, warranties and
covenants made by the Seller in the Basic Documents, as applicable, as of the
date of the execution and delivery of such agreements, and hereby incorporates
each such representation, warranty and covenant into this Agreement for the
benefit of the Underwriters as if set forth herein.
SECTION
2. Purchase
and Sale.
The
several commitments of the Underwriters to purchase the Underwritten Securities
pursuant to this Agreement shall be deemed to have been made on the basis of
the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth. The Depositor agrees to instruct the
[Trustee] to issue the Securities and agrees to sell to each Underwriter, and
each Underwriter agrees (except as provided in Sections 10 and 11 hereof)
severally and not jointly to purchase from the Depositor, the aggregate initial
principal amounts or percentage interests of the Underwritten Securities of
each
Class, as set forth opposite such Underwriter’s name on Schedule A, at the
purchase price or prices (plus accrued interest, as appropriate) set forth
on
Schedule A.
SECTION
3. Delivery
and Payment.
Delivery of and payment for the Underwritten Securities shall be made at the
offices of XxXxx Xxxxxx LLP, 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or
at
such other place as shall be agreed upon by the Representative and the Depositor
at 10:00 a.m. New York City time on
[ ],
200[ ], or at such other time or date as shall be agreed upon
by the Representative and the Depositor (such date being referred to as the
“Closing Date”). Payment shall be made to the Depositor by wire transfer of same
day funds payable to the account of the Depositor or its designee. Delivery
of
the Underwritten Securities shall be made to the Representative for the accounts
of the several Underwriters against payment of the purchase price thereof.
The
Underwritten Securities so delivered will, unless otherwise specified, be
initially represented by one or more [certificates] [notes] registered in the
name of Cede & Co., the nominee of The Depository Trust Company (“DTC”). The
interests of the beneficial owners of the Underwritten Securities will, unless
otherwise specified, be represented by book entries on the records of DTC and
participating members thereof. Definitive Underwritten Securities will be
available only, unless otherwise specified, under the limited circumstances
specified in the [Pooling] [Transfer] and Servicing Agreement.
SECTION
4. Offering
by the Underwriters.
It is
understood that, subject to the terms and conditions hereof, the several
Underwriters propose to offer the Underwritten Securities for sale to the public
as set forth in the Prospectus.
SECTION
5. Agreements.
(a) The
Depositor agrees as follows:
(i) To
prepare the Preliminary Prospectus and the Final Prospectus in a form approved
by the Underwriters and to file each such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission’s close of business on
the second Business Day following the availability of such Prospectus to the
Underwriters; to make no further amendment or any supplement to the Registration
Statement or to either Prospectus prior to the Closing Date except as permitted
herein; to advise the Underwriters, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed
or
becomes effective prior to the termination of the offering of the Underwritten
Securities or any supplement to the Final Prospectus or any amended Final
Prospectus has been filed and to furnish the Underwriters or their counsel
with
copies thereof without charge; to file promptly all reports required to be
filed
by the Depositor with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Final Prospectus and
for
so long as the delivery of a prospectus is required by law in connection with
the offering or sale of the Underwritten Securities; and for so long as delivery
of a prospectus is required by law, to promptly advise the Underwriters of
its
receipt of notice of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution of, or to
the
knowledge of the Depositor the threatening of, any proceeding for such purpose,
or of: (i) any order preventing or suspending the use of a Prospectus; (ii)
the
suspension of the qualification of the Underwritten Securities for offering
or
sale in any jurisdiction; (iii) the initiation of or threat of any proceeding
for any such purpose; or (iv) any request by the Commission for the amending
or
supplementing of the Registration Statement or the Final Prospectus or for
additional information. In the event of the issuance of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending any such
qualification, the Depositor promptly shall use its best efforts to obtain
the
withdrawal of such order by the Commission.
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(ii) To
furnish to the Underwriters and to counsel for the Underwriters upon request
a
copy of the Registration Statement as originally filed with the Commission,
and
of each amendment thereto filed with the Commission, including all consents
and
exhibits filed therewith.
(iii) To
deliver promptly to the Underwriters without charge (for so long as delivery
of
a prospectus is required by law in connection with the offering or sale of
the
Underwritten Securities) such number as the Underwriters shall reasonably
request of the Final Prospectus and any amended or supplemented Final
Prospectus. If the delivery of a prospectus is required by law at any time
prior
to the expiration of nine months after the Closing Date in connection with
the
offering or sale of the Underwritten Securities, and if at such time any events
shall have occurred as a result of which the Final Prospectus as then amended
or
supplemented would include any untrue statement of a material fact or omit
to
state any material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made when such Final
Prospectus is delivered, not misleading, or, if for any other reason it shall
be
necessary during such same period to amend or supplement the Final Prospectus
or
to file under the Exchange Act any document incorporated by reference in the
Final Prospectus in order to comply with the Securities Act or the Exchange
Act,
the Depositor shall notify the Underwriters and, upon any Underwriter’s request,
shall file such document and prepare and furnish without charge to the
Underwriters and to any dealer in securities as many copies as the Underwriters
may from time to time reasonably request of an amended Final Prospectus or
a
supplement to the Final Prospectus which corrects such statement or omission
or
effects such compliance, and in case the Underwriters are required by law to
deliver a Final Prospectus in connection with sales of any of the Underwritten
Securities at any time nine months or more after the Closing Date, upon the
request of the Underwriters but at their expense the Depositor shall prepare
and
deliver to the Underwriters as many copies as the Underwriters may reasonably
request of an amended or supplemented Final Prospectus complying with Section
10(a)(3) of the Securities Act.
10
(iv) For
so
long as delivery of a prospectus is required by law in connection with the
offering or sale of the Underwritten Securities, to file promptly with the
Commission any amendment to the Registration Statement or the Final Prospectus
or any supplement to the Final Prospectus that may, in the judgment of the
Depositor, be required by the Securities Act or requested by the Commission.
Neither the Underwriters’ consent to nor their distribution of any amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(v) To
furnish the Underwriters and counsel for the Underwriters, prior to filing
with
the Commission, the following documents relating to the Underwritten Securities:
any post-effective amendment to the Registration Statement or supplement to
the
Final Prospectus, or document incorporated by reference in the Final Prospectus
other than any periodic reports required to be filed after the Closing
Date.
(vi) To
use
commercially reasonable efforts, in cooperation with the Underwriters, to
qualify the Underwritten Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States
or
elsewhere as the Underwriters may reasonably designate prior to the execution
of
this Agreement, and maintain or cause to be maintained such qualifications
in
effect for as long as may be required for the distribution of the Underwritten
Securities. The Depositor will file or cause the filing of such statements
and
reports as may be required by the laws of each jurisdiction in which the
Underwritten Securities have been so qualified; provided,
however,
that
the Depositor shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to general or unlimited service of process in any jurisdiction where
it is now so subject.
(vii) To
cause
the [Pooling] [Transfer] and Servicing Agreement to provide that so long as
the
Underwritten Securities shall be outstanding, the [Trustee] shall deliver to
the
Underwriters: (i) the annual statement as to compliance delivered to the
[Trustee] pursuant to Section [4.28] of the [Pooling] [Transfer] and Servicing
Agreement; (ii) the annual statement of a firm of independent public accountants
furnished to the [Trustee] pursuant to Section [4.29] of the [Pooling]
[Transfer] and Servicing Agreement; (iii) the monthly servicing report furnished
to the [Trustee] and (iv) the monthly reports furnished to the Securityholders
pursuant to Section [6.08] of the [Pooling] [Transfer] and Servicing
Agreement.
(viii) To
the
extent that the Underwriters have complied with the terms of Sections 5(b)
and 5A, to file with the Commission any Free Writing Prospectus (as defined
herein) delivered to investors in accordance with Sections 5(b) and 5A as the
Depositor is required under the Regulations to file, and to do so within the
applicable period of time prescribed by the Regulations.
11
(b) Each
Underwriter severally represents, warrants, covenants and agrees with the
Depositor as to itself that:
(i) It
has
not provided and will not provide to any potential investor any information
that
would constitute “issuer information” within the meaning of Rule 433(h) under
the Securities Act other than information contained in the Preliminary Term
Sheet or (y) Custom Loan Information (each as defined herein).
(ii) In
disseminating information to potential investors, it has complied and will
continue to comply fully with the Regulations, including but not limited to
Rules 164 and 433 under the Securities Act and the requirements thereunder
for
filing and retention of free writing prospectuses.
(iii) It
has
not disseminated and will not disseminate any information relating to the
Underwritten Securities in reliance on Rule 167 or 426 under the Securities
Act.
(iv) It
has
not disseminated and will not disseminate any information relating to the
Underwritten Securities in a manner reasonably designed to lead to its broad
unrestricted dissemination within the meaning of Rule 433(d) under the
Securities Act.
(v) Each
Free
Writing Prospectus disseminated by such Underwriter bore or will bear the
applicable legends required under this Agreement, and no Free Writing Prospectus
disseminated by such Underwriter bore or will bear any legend proscribed under
this Agreement.
(vi) Prior
to
entering into any Contract of Sale, the Underwriter shall convey the Preliminary
Prospectus to each prospective investor. The Underwriter shall maintain
sufficient records to document its conveyance of the Preliminary Prospectus
to
each potential investor prior to the formation of the related Contract of Sale
and shall maintain such records as required by the Regulations.
(vii) On
or
before the Closing Date, the Representative shall execute and deliver to XxXxx
Xxxxxx LLP a letter containing such information regarding original issue
discount and the pricing of the Underwritten Securities as XxXxx Xxxxxx LLP
may
reasonably request.
(viii) In
relation to each member state of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), each
Underwriter represents and agrees that with effect from and including the date
on which the Prospectus Directive is implemented in that Relevant Member State
(the “Relevant Implementation Date”) and with respect to any class of
Underwritten Securities with a minimum denomination of less than $100,000,
it
has not made and will not make an offer of Underwritten Securities to the public
in that Relevant Member State prior to the publication of a prospectus in
relation to the Underwritten Securities which has been approved by the competent
authority in that Relevant Member State or, where appropriate, approved in
another Relevant Member State and notified to the competent authority in that
Relevant Member State, all in accordance with the Prospectus Directive, except
that it may, with effect from and including the Relevant Implementation Date,
make an offer of Underwritten Securities to the public in that Relevant Member
State at any time:
12
(1) to
legal
entities which are authorized or regulated to operate in the financial markets
or, if not so authorized or regulated, whose corporate purpose is solely to
invest in securities;
(2) to
any
legal entity which has two or more of (x) an average of at least 250 employees
during the last financial year; (y) a total balance sheet of more than
€43,000,000 and (z) an annual net turnover of more than €50,000,000, as shown in
its last annual or consolidated accounts; or
(3) in
any
other circumstances which do not require the publication by the issuer of a
prospectus pursuant to Article 3 of the Prospectus Directive.
For
the
purposes of this Section, the expression an “offer of Underwritten Securities to
the public” in relation to any class of Underwritten Securities, which class has
a minimum denomination of less than $100,000, in any Relevant Member State
means
the communication in any form and by any means of sufficient information on
the
terms of the offer and the Underwritten Securities to be offered so as to enable
an investor to decide to purchase or subscribe for the Underwritten Securities,
as the same may be varied in that member state by any measure implementing
the
Prospectus Directive in that member state and the expression “Prospectus
Directive” means Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
(ix) Each
confirmation of sale with respect to Underwritten Securities delivered by an
Underwriter shall, if such confirmation of sale is not preceded or accompanied
by delivery of the Final Prospectus, include a legend to the following effect
in
compliance with Rule 173 under the Securities Act:
Rule
173 notice: This security was sold pursuant to an effective registration
statement that is on file with the SEC. You may request a copy of the final
prospectus at xxx.xxx.xxx,
or by calling [ ].
SECTION
5A.
Offering
Procedures.
(a) The
following terms have the specified meanings for purposes of this
Agreement:
(i) “Custom
Loan Information” means such information regarding the Mortgage Loans as is
disseminated by any Underwriter to a potential investor, exclusive of Pool
Information (in the form provided by the Depositor) and information included
in
the Preliminary Term Sheet.
(ii) “Contract
of Sale” has the same meaning as the term “contract of sale” as used in Rule 159
under the Securities Act.
(iii) “Derived
Information” means such information regarding the Underwritten Securities as is
disseminated by any Underwriter to a potential investor, which information
is
prepared on the basis of or derived from, but does not include, (A) Issuer
Information, (B) information contained in the Registration Statement, either
Prospectus or any amendment or supplement to any of them, taking into account
information incorporated therein by reference or (C) Pool
Information.
13
(iv) “Free
Writing Prospectus” means the Preliminary Term Sheet and any Custom Loan
Information or other information relating to the Underwritten Securities
disseminated by the Depositor or any Underwriter that constitutes a “free
writing prospectus” within the meaning of Rule 405 under the Securities
Act.
(v) “Issuer
Information” means (1) the information contained in pages [ ]
through [ ] of the Preliminary Term Sheet,
[exclusive of the information in the [ ] and
[ ] columns of the table on page
[ ] thereof, and (2) any other information provided in writing
by the Depositor to the Underwriters specifically for dissemination to potential
investors, attached hereto as Exhibit D.
(vi) “Preliminary
Term Sheet” means the preliminary term sheet dated
[ ],
200[ ], attached hereto as Exhibit C.
(b) Neither
the Depositor nor any Underwriter will disseminate to any potential investor
any
information relating to the Underwritten Securities that constitutes a “written
communication” within the meaning of Rule 405 under the Securities Act, other
than the Preliminary Term Sheet, a Prospectus and, in the case of the
Underwriters, Derived Information or Custom Loan Information, unless (i) if
an
Underwriter seeks to disseminate such information, such Underwriter or the
Representative has obtained the prior consent of the Depositor, or (ii) if
the
Depositor seeks to disseminate such information, the Depositor has obtained
the
prior consent of the Representative.
An
Underwriter may convey Derived Information or Custom Loan Information to a
potential investor prior to entering into a Contract of Sale with such
investor;
provided, however,
that
Derived Information shall not be distributed in a manner reasonably designed
to
lead to its broad unrestricted dissemination within the maning of Rule 433(d)
under the Securities Act. Each Underwriter shall maintain records of any
conveyance of Derived Information to potential or actual investors and shall
maintain such records as required by the Regulations.
Neither
the Depositor nor any Underwriter shall disseminate or file with the Commission
any information relating to the Underwritten Securities in reliance on Rule
167
or 426 under the Securities Act, nor shall any Underwriter disseminate any
Free
Writing Prospectus in a manner reasonably designed to lead to its broad
unrestricted dissemination within the meaning of Rule 433(d) under the
Securities Act.
(c) Each
Free
Writing Prospectus shall bear the applicable legends specified in Exhibit B-1
hereto, and may bear the applicable legends specified in Exhibit B-2 hereto.
A
Free Writing Prospectus shall not include any legend of a type specified in
Exhibit B-3 hereto.
(d) Each
Underwriter shall deliver (directly or through the Representative) to the
Depositor and its counsel a copy, in electronic form, of each Free Writing
Prospectus disseminated by such Underwriter that is required to be filed with
the Commission, not later than two business days prior to the date on which
such
Free Writing Prospectus is required under the Regulations to be so
filed.
14
SECTION
6. Conditions
to the Underwriters’ Obligations.
The
several obligations of the Underwriters hereunder to purchase the Underwritten
Securities pursuant to this Agreement are subject to the following conditions
as
of the Closing Date:
(a) Each
of
the obligations of each of the Depositor and the Seller required to be performed
by it on or prior to the Closing Date pursuant to the terms of the Basic
Documents to which it is a party shall have been duly performed and complied
with, all of the representations and warranties of the Depositor and the Seller
(other than any representation or warranty as to the Mortgage Loans or other
Collateral) under any of the Basic Documents to which it is a party shall be
true and correct in all material respects as of the Closing Date, and no event
shall have occurred that, with notice or the passage of time, would constitute
a
default under any of the Basic Documents to which it is a party, and the
Representative shall have received certificates to the effect of the foregoing,
each signed by an authorized officer of the Depositor or the Seller, as
applicable.
(b) Prior
to
the Closing Date, (i) the Depositor shall have received verbal confirmation
of
the effectiveness of the Registration Statement and (ii) 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 Depositor shall be contemplated, by the Commission. Any request
of the Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with.
(c) The
Representative shall have received letters dated on or before the date on which
the Prospectus Supplement is dated and printed, in form and substance reasonably
acceptable to the Underwriters and their counsel, prepared by [ ] (i) regarding
certain numerical information contained or incorporated by reference in the
Preliminary Prospectus Supplement and the Prospectus Supplement and (ii)
relating to certain agreed upon procedures as requested by the Underwriters
relating to the Mortgage Loans, or shall have waived compliance with this
condition.
(d) The
Securities shall have received the ratings specified in the Prospectus
Supplement.
(e) The
Representative shall have received the following additional closing documents,
in form and substance reasonably satisfactory to the Representative and its
counsel:
(i) the
Basic
Documents and all documents required thereunder, duly executed and delivered
by
each of the parties thereto other than the Underwriters and their
affiliates;
(ii) an
officer’s certificate of an officer of the Seller and an officer’s certificate
of an officer of the Depositor, in each case dated as of the Closing Date and
reasonably satisfactory in form and substance to the Representative and counsel
for the Underwriters with a copy of the organizational documents of the Seller
or the Depositor, as applicable;
15
(iii) an
opinion of in-house counsel to the Seller, dated the Closing Date, reasonably
satisfactory in form and substance to the Representative and counsel for the
Underwriters, as to various corporate matters;
(iv) an
opinion of in-house counsel to the Depositor, dated the Closing Date, reasonably
satisfactory in form and substance to the Representative and counsel for the
Underwriters, as to various corporate matters;
(v) an
opinion of [ ],
counsel to the Underwriters, dated the Closing Date, reasonably satisfactory
in
form and substance to the Representative as to various matters;
(vi) a
negative assurance letter of
[ ] with respect to
each Prospectus;
(vii) such
opinions of XxXxx Xxxxxx LLP, counsel to the Depositor, in form reasonably
satisfactory to the Representative, counsel for the Underwriters, and the Rating
Agencies as to such additional matters not opined to in the opinion delivered
pursuant to clause (iv) above as shall be required for the assignment of the
ratings specified in the Prospectus to the Underwritten Securities;
(viii) a
negative assurance letter of XxXxx Xxxxxx LLP with respect to each Prospectus,
reasonably satisfactory in form and substance to the Representative and counsel
for the Underwriters;
(ix) an
opinion of counsel to the [Indenture] Trustee, dated the Closing Date, in form
and substance reasonably satisfactory to the Representative, counsel for the
Underwriters and the Rating Agencies; and
(x) an
officer’s certificate of an officer of the [Indenture] Trustee, dated as of the
Closing Date, reasonably satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(f) All
proceedings in connection with the transactions contemplated by this Agreement
and all documents incident hereto shall be reasonably satisfactory in form
and
substance to the Representative and counsel for the Underwriters.
(g) The
Seller and the Depositor shall have furnished the Representative with such
other
certificates of its officers or others and such other documents or opinions
as
the Representative or counsel for the Underwriters may reasonably
request.
(h) Subsequent
to the execution and delivery of this Agreement none of the following shall
have
occurred: (i) trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or the over-the-counter market shall have been
suspended or minimum prices shall have been established on either of such
exchanges or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction; (ii) a banking
moratorium shall have been declared by Federal or New York state authorities;
(iii) the United States shall have become engaged in material hostilities,
there
shall have been an escalation of such hostilities involving the United States
or
there shall have been a declaration of war by the United States; (iv) a material
disruption in settlement or clearing operations shall occur; or (v) there shall
have occurred such a material adverse change in general economic, political
or
financial conditions (or the effect of international conditions on the financial
markets of the United States shall be such) that is material and adverse and,
in
the case of any of the events specified in clauses (i) through (v), either
individually or together with any other such event specified in clauses (i)
through (v) makes it, in the reasonable judgment of the Representative,
impractical or inadvisable to market the Underwritten Securities.
16
(i) There
shall not have occurred any development that has caused a material adverse
change in the financial condition or business operations of the Seller or the
Depositor, which adverse change makes it impractical or inadvisable to market
the Underwritten Securities.
If
any
condition specified in this Section 6 shall not have been fulfilled when and
as
required to be fulfilled, this Agreement may be terminated by the Underwriters
by notice to the Depositor at any time at or prior to the Closing Date, and
such
termination shall be without liability of any party to any other party except
as
provided in Sections 7 and 8.
SECTION
7. Payment
of Expenses.
(a) The
Seller agrees to pay (i) the costs incident to the authorization, issuance,
sale
and delivery of the Securities and any taxes payable in connection therewith;
(ii) the costs incident to the preparation, printing and filing under the
Securities Act of the Registration Statement and any amendments and exhibits
thereto; (iii) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), the Preliminary Prospectus, the
Final Prospectus and any amendment or supplement to the Final Prospectus or
any
document incorporated by reference therein, all as provided in this Agreement;
(iv) the costs of reproducing and distributing this Agreement; (v) any fees
charged by securities rating agencies for rating the Underwritten Securities;
(vi) the cost of accountants’ comfort letters relating to each Prospectus
(except as otherwise agreed herein or in a separate letter agreement between
the
Depositor and the Representative); and (vii) all other costs and expenses
incidental to the performance of the obligations of the Depositor and the Seller
(including costs and expenses of counsel to the Depositor and the Seller).
(b) The
Underwriters shall be solely responsible for (i) the
costs
and expenses of the Underwriters, including the costs and expenses of their
counsel and any Blue Sky or legal investment surveys, and (ii) any due diligence
expenses incurred by them, any transfer taxes on the Underwritten Securities
that they may sell, the expenses of advertising any offering of the Underwritten
Securities made by the Underwriters.
If
this
Agreement is terminated because of a breach by the Depositor or the Seller
of
any covenant or agreement hereunder (other than the failure of the closing
condition set forth in Section 6(h) to be met), the Depositor and the Seller
shall cause the Underwriters to be reimbursed for all reasonable out-of-pocket
expenses, including fees and disbursements of counsel for the
Underwriters.
17
SECTION
8. Indemnification
and Contribution.
(a) Each
of
the Seller and the Depositor indemnifies and holds harmless each Underwriter,
each Underwriter’s respective officers and directors and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, as follows:
(i) against
any and all losses, claims, expenses, damages or liabilities, joint or several,
to which such Underwriter, its officers, directors or such controlling person
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof, including
but not limited to any loss, claim, expense, damage or liability related to
purchases and sales of the Underwritten Securities) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, either Prospectus, or any amendment
or
supplement to any of them, or the Issuer Information, 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 made therein
not misleading; and will reimburse each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided,
however,
that
the Seller and the Depositor shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an
untrue statement or omission, or alleged untrue statement or omission, made
in
any of such documents (x) in reliance upon and in conformity with any
Underwriters’ Information; or (y) in any Derived Information in any Free Writing
Prospectus, except in the case of clause (y) to the extent that any untrue
statement or alleged untrue statement or omission therein results from an error
or material omission in the information either in either Prospectus for which
the Depositor or the Seller is responsible or concerning the characteristics
of
the Mortgage Loans furnished by the Seller to the Underwriters for use in the
preparation of any Free Writing Prospectus (any such information, the “Pool
Information”); provided,
further,
that no
indemnity shall be provided by either the Depositor or the Seller for any error
in the Pool Information that was superseded or corrected by the delivery to
the
Underwriters of corrected written or electronic information prior to the
confirmation of the sale of the applicable Securities and the Underwriters
failed to provide the corrected information in written or electronic form,
or
for which the Seller or the Depositor provided written notice of such error
to
the Underwriters prior to dissemination by the Underwriters of the Pool
Information and the Underwriters disseminated such uncorrected Pool Information
(in each case, any such uncorrected Pool Information, a “Pool Error”); and
provided,
further,
that the
Seller and the Depositor shall not be liable in any such case to the extent
that
any such loss, claim, expense, damage or liability arises out of or is based
upon an omission to include in the Preliminary Prospectus information included
in the Final Prospectus;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, to the extent
of the aggregate amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or threatened,
or of
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is effected with
the written consent of the Depositor or the Seller; and
18
(iii) against
any and all expense whatsoever (including the fees and disbursements of counsel
chosen by any such Underwriter), reasonably incurred in investigating, preparing
to defend or defending against any litigation, or investigation or proceeding
by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is not paid
under clause (i) or clause (ii) above.
This
indemnity agreement will be in addition to any liability that the Depositor
may
otherwise have.
(b) Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
each of the Seller and the Depositor, each of their partners or managers, each
of their officers and each person, if any, who controls the Seller or the
Depositor within the meaning of Section 15 of the Securities Act or Section
20
of the Exchange Act, against any and all losses, claims, expenses, damages
or
liabilities to which the Seller or the Depositor or any such partner, manager,
officer or controlling person may become subject, under the Securities Act
or
otherwise, insofar as such losses, claims, expenses, damages or liabilities
(or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in (i) any Derived
Information or Custom Loan Information disseminated by such Underwriter, (ii)
any information, other than Derived Information, Custom Loan Information, the
Preliminary Term Sheet or any Prospectus, disseminated by such Underwriter
and
(iii) the Registration Statement, either Prospectus or any amendment or
supplement thereto, or arise out of, or are based upon, the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements made therein not misleading, but with
respect to clauses (b)(i) and (ii) above, only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission does
not
result from an error or material omission in the Pool Information (other than
a
Pool Error), and with respect to clause (b)(iii) above, only to the extent
that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with the Underwriters’
Information of such Underwriter; and will reimburse any legal or other expenses
reasonably incurred by the Seller, the Depositor or any such director, officer
or controlling person in connection with investigating, preparing to defend
or
defending any such loss, claim, expense, damage, liability or action. This
indemnity agreement will be in addition to any liability that such Underwriter
may otherwise have.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of any
claim or the commencement of any action described therein, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party of the claim or
commencement of the action; but the omission to so notify the indemnifying
party
will not relieve the indemnifying party from any liability that it may have
to
any indemnified party otherwise than under this Section 8. In case any such
claim or action is brought against any indemnified party, and it notifies the
indemnifying party thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may wish to do so, jointly
with
any other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election to assume the defense of such claim or action and the
appointment of counsel as provided under this Section 8, such indemnifying
party
shall not be liable for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
19
Any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless: (i)
the
employment thereof has been specifically authorized by the indemnifying party
in
writing; (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel; (iii) a conflict or potential conflict exists (based
on advice of counsel to the indemnified party) between the indemnified party
and
the indemnifying party (in which case the indemnifying party will not have
the
right to direct the defense of such action on behalf of the indemnified party);
or (iv) the indemnifying party has failed to assume the defense of such action
and employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing
that
it elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the related Underwriter, if the
indemnified parties under this Section 8 consist of one Underwriter or any
of
its controlling persons, by the Representative, if the indemnified parties
under
this Section 8 consist of more than one Underwriter or their controlling persons
or the Depositor or the Seller, if the indemnified parties under this Section
8
consist of the Depositor or any of the Depositor’s directors, officers or
controlling persons or the Seller or any of the Seller’s directors, officers or
controlling persons.
No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees
to
indemnify and hold harmless any indemnified party from and against any loss
or
liability (to the extent set forth in Section 8(a) or Section 8(b) as
applicable) by reason of such settlement or judgment.
Notwithstanding
the foregoing paragraph, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and
expenses of counsel, the indemnifying party agrees that it shall be liable
for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
20
(d) If
the
indemnification provided for in Section 8(a) or 8(b) is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or
(b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages
or
liabilities referred to in subsection (a) or (b) above (i) in such proportion
as
is appropriate to reflect the relative benefits received by the Depositor or
the
Seller on the one hand and the Underwriters on the other from the offering
of
the Underwritten Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Depositor or the Seller on the one hand and
the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the
Depositor or the Seller on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Underwritten Securities (before deducting expenses) received
by
the Depositor or the Seller bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Depositor or the Seller
or
by the Representative on behalf of the several Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct
or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to
above in the first sentence of this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of underwriting discounts and commissions received by such Underwriter.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations in this subsection (d) to contribute are several in proportion
to
their respective underwriting obligations and not joint.
SECTION
9. Representations,
Warranties and Agreements to Survive Delivery.
All
representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Depositor or the Seller submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters or controlling
persons thereof, or by or on behalf of the Depositor or the Seller, and shall
survive delivery of any Securities to the Underwriters.
SECTION
10. Default
by One or More of the Underwriters.
If one
or more of the Underwriters participating in the public offering of the
Underwritten Securities shall fail at the Closing Date to purchase the
Underwritten Securities that it is (or they are) obligated to purchase hereunder
(the “Defaulted Securities”), then the non-defaulting Underwriters shall have
the right, within 24 hours thereafter, to make arrangements for one or more
of
the non-defaulting Underwriters, or any other underwriters, to purchase all,
but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth. If, however, the non-defaulting
Underwriters have not completed such arrangements within such 24-hour period,
then
21
(a) if
the
aggregate principal amount of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Underwritten Securities to be purchased
pursuant to this Agreement, the non-defaulting Underwriters named in this
Agreement shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to
the
underwriting obligations of all such non-defaulting Underwriters; or
(b) if
the
aggregate principal amount of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Underwritten Securities to be purchased pursuant to
this
Agreement, this Agreement shall terminate, without any liability on the part
of
the Depositor or any non-defaulting Underwriters.
No
action
taken pursuant to this Section 10 shall relieve any defaulting Underwriter
from
the liability with respect to any default of such Underwriter under this
Agreement.
In
the
event of a default by any Underwriter as set forth in this Section 10, each
of
the non-defaulting Underwriters and the Depositor shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in
order
that any required changes in the Registration Statement or Prospectus or in
any
other documents or arrangements may be effected.
SECTION
11. Termination
of Agreement.
The
Underwriters may terminate this Agreement immediately upon notice to the
Depositor, at any time at or prior to the Closing Date if the events set forth
in Section 6(h) of this Agreement shall occur and be continuing, or if any
other
closing condition set forth in Section 6 shall not have been fulfilled when
required to be fulfilled. In the event of any such termination, the provisions
of Section 7, Section 8, Section 9, Section 14 and Section 16 shall remain
in
effect.
SECTION
12. Notices.
All
statements, requests, notices and agreements hereunder shall be in writing,
and:
(a) if
to the
Underwriters, shall be delivered or sent to the Representative by mail, telex
or
facsimile transmission to the Representative at [address to be provided],
Attention:
[ ];
(b) if
to the
Depositor, shall be delivered or sent by mail, telex or facsimile transmission
to TBALT Corp., 0000 Xxxxx Xxxxxxx Xxxx, Xx. 000, Xxxxxxxx, XX 00000, Attention:
Xxxxxxx
Xxxxxxxx;
and
(c) if
to the
Seller, shall be delivered or sent by mail, telex or facsimile transmission
to
Xxxxxx, Bean & Xxxxxxxx Mortgage Corp., 000 XX 0xx
Xxxxxx,
Xxxxx, XX 00000, Facsimile [
],
Attention: Xxxxxxx Xxxxxxxx.
SECTION
13. Persons
Entitled to the Benefit of this Agreement.
This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Seller and the Depositor, and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that the representations, warranties, indemnities and agreements
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any of the Underwriters within the
meaning of Section 15 of the Securities Act, and for the benefit of each
Underwriter’s respective officers and directors and for the benefit of directors
of the Seller and the Depositor, officers of the Depositor who have signed
the
Registration Statement and any person controlling the Seller and the Depositor
within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than
the
persons referred to in this Section 13, any legal or equitable right, remedy
or
claim under or in respect of this Agreement or any provision contained
herein.
22
SECTION
14. Survival.
The
respective indemnities, representations, warranties and agreements of the
Depositor, the Seller and the Underwriters contained in this Agreement, or
made
by or on behalf of them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Underwritten Securities and shall remain
in
full force and effect, regardless of any investigation made by or on behalf
of
any of them or any person controlling any of them.
SECTION
15. Definition
of the Term “Business Day.”
For
purposes of this Agreement, “Business Day” means any day on which the New York
Stock Exchange, Inc. is open for trading.
SECTION
16. Governing
Law: Submission to Jurisdiction.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
The
parties hereto hereby submit to the non-exclusive jurisdiction of the United
States District Court for the Southern District of New York and any court in
the
State of New York located in the City and County of New York, and any appellate
court from any thereof, in any action, suit or proceeding brought against it
or
in connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby agree that all claims in respect of
any
such action or proceeding may be heard or determined in New York State court
or,
to the extent permitted by law, in such federal court.
SECTION
17. Counterparts.
This
Agreement may be executed in counterparts and, if executed in more than one
counterpart, the executed counterparts shall each be deemed to be an original
but all such counterparts shall together constitute one and the same
instrument.
SECTION
18. Headings.
The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
23
SECTION
19. No
Fiduciary Duty.
Notwithstanding any preexisting relationship, advisory or otherwise, between
the
parties or any oral representations or assurances previously or subsequently
made by the Underwriters, the Depositor and the Seller acknowledge and agree
that in connection with the offering: (i) there exists no fiduciary or agency
relationship between the Depositor and the Seller, on the one hand, and the
Underwriters, on the other; (ii) the relationship between the Depositor and
the
Seller, on the one hand, and the Underwriters, on the other, is entirely and
solely commercial, based on arm’s-length negotiations and the Underwriters are
not acting as advisors, expert or otherwise, to either the Depositor or the
Seller; (iii) notwithstanding anything in this Agreement to the contrary, the
Depositor and the Seller acknowledge that the Underwriters may have financial
interests in connection with the offering of the Underwritten Securities in
addition to the difference between the price to the public and the purchase
price paid to the Depositor by the Underwriters for the Underwritten Securities
and the Underwriters have no obligation to disclose, or account to the Depositor
or the Seller for, any of such additional financial interests. The Depositor
and
the Seller hereby each waives and releases, to the fullest extent permitted
by
law, any claims that either of the Depositor or the Seller may have against
the
Underwriters with respect to any breach or alleged breach of fiduciary duty
in
connection with the offering.
24
If
the
foregoing correctly sets forth the agreement among the Depositor, the Seller
and
the Underwriters, please indicate your acceptance in the space provided for
the
purpose below.
| Very truly yours, | ||
| TBALT CORP. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
CONFIRMED AND ACCEPTED,
as
of the
date first above written:
[NAME
OF
REPRESENTATIVE TO BE PROVIDED]
Acting
on
its own behalf and as Representative
of
the
Several Underwriters referred to in
the
foregoing Agreement
| By: | |||
|
Name:
|
|||
|
Title:
|
SCHEDULE
A
Underwritten
Securities
|
Class
|
Original
Class
Principal
Amount(1)
|
Class
Interest
Rate
|
Purchase
Price
Percentage
|
Amount
to be
purchased
by
[NAME
OF
UNDERWRITER
TO
BE
PROVIDED]
|
Amount
to be
purchased
by
[NAME
OF UNDERWRITER
TO
BE
PROVIDED]
|
Amount
to be
purchased
by
[NAME
OF UNDERWRITER
TO
BE
PROVIDED]
|
Amount
to be
purchased
by
[NAME
OF
UNDERWRITER
TO
BE
PROVIDED]
|
|||||||
EXHIBIT
A
Underwriters’
Information:
The
information set forth in the [first, second and third paragraphs (including
the
table contained therein) under the caption “Method of Distribution”] in each of
the Preliminary Prospectus Supplement and the Prospectus
Supplement.
A-1
EXHIBIT
B-1
A
legend
in substantially the following form must appear on each Free Writing
Prospectus:
The
issuer has filed or will file with the SEC a registration statement (including
a
prospectus and any prospectus supplement) and any related issuer free-writing
prospectus with respect to this offering (the “Offering Documentation”). You may
obtain a copy of the prospectus for free by visiting the web site at
[_________].
You may get the Offering Documentation (when completed) for free by searching
the SEC online database (XXXXX®) at xxx.xxx.xxx.
Alternatively, you may obtain a copy of the Offering Documentation from either
(i) Xxxxxx, Bean & Xxxxxxxx Mortgage Corp., 000 XX 0xx
Xxxxxx, Xxxxx, XX 00000; Attn: Structured Finance or by calling (800)
[ ]-[ ], Attention: Xxxxxxx Xxxxxxxx, or (ii)
[ ] or by calling
[ ].
The
following additional legends must appear on the Preliminary Term Sheet
(including each version thereof), any amendment thereof or supplement
thereto:
This
free writing prospectus is not required to contain all information that is
required to be included in the base prospectus and the prospectus
supplement.
The
information in this free writing prospectus is preliminary and is subject to
completion or change.
The
information in this free writing prospectus, if conveyed prior to the time
of
your commitment to purchase, supersedes similar information contained in any
prior free writing prospectus relating to these
securities.
This
free writing prospectus does not constitute an offer to sell or a solicitation
of an offer to buy these securities in any state where such offer, solicitation
or sale is not permitted.
The
following additional legends must appear on any final term sheet (including
each
version thereof), any amendment thereof or supplement thereto:
This
free writing prospectus is not required to contain all information that is
required to be included in the base prospectus and the prospectus
supplement.
The
information in this free writing prospectus, if conveyed prior to the time
of
your commitment to purchase, supersedes similar information contained in any
prior free writing prospectus relating to these
securities.
This
free writing prospectus does not constitute an offer to sell or a solicitation
of an offer to buy these securities in any state where such offer, solicitation
or sale is not permitted.
B-1-1
The
following additional legends must appear on each Free Writing Prospectus that
includes Derived Information:
The
information in this free writing prospectus may be based on preliminary
assumptions about the pool assets and the structure. Any such assumptions are
subject to change.
None
of TBALT Corp. or any of its affiliates prepared, provided, approved or verified
any statistical or numerical information presented in this free writing
prospectus, although that information may be based in part on loan level data
provided by TBALT Corp. or its affiliates.
B-1-2
EXHIBIT
B-2
The
following additional legends may appear on the Preliminary Term Sheet (including
each version thereof), any amendment thereof or supplement thereto, and any
final term sheet:
This
free writing prospectus is not required to contain all information that is
required to be included in the base prospectus and the prospectus
supplement.
The
information in this free writing prospectus is preliminary and is subject to
completion or change.
The
information in this free writing prospectus, if conveyed prior to the time
of
your commitment to purchase, supersedes information contained in any prior
similar free writing prospectus relating to these
securities.
Please
click here for a copy of the base prospectus applicable to this offering.
[insert link direct to base as posted on a website, or link to an embedded
pdf
copy of the base prospectus]
The
following additional legend, or a similar legend to the following effect, may
appear on any Free Writing Prospectus disseminated prior to the time of contract
of sale, if reflective of the understanding between the Underwriter and the
investor:
The
asset-backed securities referred to in these materials are being offered when,
as and if issued. In particular, asset-backed securities and the asset pools
backing them are subject to modification or revision (including, among other
things, the possibility that one or more classes of securities may be split,
combined or eliminated) at any time prior to issuance. As a result, you may
commit to purchase securities with characteristics that may change materially,
and all or a portion of the securities may not be issued with material
characteristics described in these materials. Our obligation to sell securities
to you is conditioned on those securities having the material characteristics
described in these materials. If that condition is not satisfied, 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 securities you committed to purchase,
and
there will be no liability between us as a consequence of the non-delivery.
However, unless the class of securities you committed to purchase has been
eliminated, we will provide you with revised offering materials and offer you
an
opportunity to purchase that class, as described in the revised offering
materials. To indicate your interest in purchasing the class you must
affirmatively communicate to us your desire to do so within _____ days after
receipt of the revised offering materials, but in no event later than the
business day before the date the securities are issued.
The
following additional legend may appear on any Free Writing Prospectus
disseminated prior to time of contract of sale:
B-2-1
This
free writing prospectus is being delivered to you solely to provide you with
information about the offering of the asset-backed securities referred to in
this free writing prospectus and to solicit an indication of your interest
in
purchasing such securities, when, as and if issued. Any such indication of
interest will not constitute a contractual commitment by you to purchase any
of
the securities. You may withdraw your indication of interest at any
time.
The
following additional legend may appear on any Free Writing Prospectus that
includes Derived Information:
The
information in this free writing prospectus may reflect parameters, metrics
or
scenarios specifically requested by you. If so, prior to the time of your
commitment to purchase, you should request updated information based on any
parameters, metrics or scenarios specifically required by you in order to make
your investment decision.
B-2-2
EXHIBIT
B-3
No
legend
to the following effect, whether or not expressed in different language, may
be
included in any Free Writing Prospectus:
Any
statement that the free writing prospectus will be superseded by the final
prospectus.
Any
disclaimer of responsibility or liability for, or any disclaimer of the accuracy
or completeness of, the content of the free writing prospectus that would not
be
appropriate for a prospectus or registration statement. [For example, a
disclaimer by any party of the accuracy of information for which that party
has
statutory liability would not be appropriate. However, factual statements
regarding the role of any party in preparing, providing, approving or verifying
any information may be made.]
Any
statement requiring investors to read, or acknowledge they have read, any
disclaimers or legends, the base prospectus or the registration
statement.
Language
stating that the free writing prospectus is not a prospectus or an offer to
sell
or a solicitation of an offer to buy (other than such a statement as to
jurisdictions in which such offer or sale is not
permitted).
Any
statement that the free writing prospectus is privileged or confidential, or
that its use is otherwise restricted.
Any
statement that the free writing prospectus does not contain all material
information, or that it will be supplemented by the final
prospectus.
Any
statement that the free writing prospectus is subject to change without
notice.
Any
statement that the investment decision should be based on, or may only be made
based on, the final prospectus or any other information that is delivered only
after the time of the contract for sale of the securities.
X-0-0
XXXXXXX
X
Xxxxxxxxxxx
Xxxx Xxxxx
X-0
XXXXXXX
X
Additional
Issuer Information
D-1
