UNDERWRITING AGREEMENT
New York, New York
_________________, 199__
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
NationsLink Funding Corporation, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the [respective] principal [and/or notional] amount[s] of
its securities identified in Schedule I hereto (the "Securities"), to be issued
under a pooling and servicing agreement (the "Pooling Agreement") to be dated as
of ________________, 199___, among the Company as depositor,
_____________________ as master servicer (the "Master Servicer"),
______________________ as special servicer (the "Special Servicer"),
___________________ as REMIC administrator (the "REMIC Administrator") and
___________________ as trustee (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives", as used herein, each shall
be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in Schedule I
hereto), which has become effective, for the registration under the Act of
the Securities. Such registration statement, as amended to the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1) under the Act
and complies in all other material respects with said Rule. The Company
proposes to file with the Commission pursuant to Rule 424 under the Act a
supplement to the form of prospectus included in such registration
statement relating to the Securities and the plan of distribution thereof
and has previously advised the Representatives of all further information
(financial and other) with respect to the Company and the Securities to be
set forth therein. Such registration statement, including the exhibits
thereto, as amended to the date of this Agreement, is hereinafter called
the "Registration Statement"; such prospectus in the form in which it
appears in the Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in which
it shall be filed with the Commission pursuant to Rule 424 (including the
Basic Prospectus as so supplemented) is hereinafter called the "Final
Prospectus." Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 hereinafter is called the
"Preliminary Final Prospectus." Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date of this Agreement, or the issue date
of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, and deemed to be incorporated therein
by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference
in the Registration Statement), when any supplement to the Final Prospectus
is filed with the Commission and at the Closing Date (as hereinafter
defined), (i) the Registration Statement, as amended as of any such time,
and the Final Prospectus, as amended or supplemented as of any such time,
will comply in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder, (ii) the
Registration Statement, as amended as of any such time, will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, and (iii) the Final Prospectus, as amended or
supplemented as of any such time, will not contain 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 were made, not misleading; provided,
however, that the Company makes no representations or warranties as to (A)
the information contained in or omitted from the Registration Statement or
the Final Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation of the Registration
Statement and the Final Prospectus or (B) any Current Report (as defined in
Section 5(b) below), or in any amendment thereof or supplement thereto,
incorporated by reference in the Registration Statement or the Final
Prospectus (or any amendment thereof or supplement thereto).
(c) The Company has been duly incorporated and is validly existing as
a corporation under the laws of the State of Delaware and has corporate and
other power and authority to own its properties and conduct its business,
as now conducted by it, and to enter into and perform its obligations under
this Agreement and the Pooling Agreement.
(d) The Company is not aware of (i) any request by the Commission for
any further amendment of the Registration Statement or the Basic Prospectus
or for any additional information or (ii) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement.
(e) This Agreement has been duly authorized, executed and delivered by
the Company, and the Pooling Agreement, when delivered by the Company, will
have been duly authorized, executed and delivered by the Company, and will
constitute a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium, receivership and similar laws affecting
creditors' rights generally and to general principles of equity (regardless
of whether the enforcement of such remedies is considered in a proceeding
in equity or at law).
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the [applicable] purchase price set
forth in Schedule I hereto, the principal [or notional] amount of [each class
of] the Securities set forth opposite such Underwriter's name in Schedule II
hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the [aggregate] purchase
price thereof in the manner set forth in Schedule I hereto. If Schedule I
indicates that the Securities are to be issued in book-entry form, delivery of
the Securities shall be made through the facilities of the depository or
depositories set forth on Schedule I. Alternatively, certificates for the
Securities shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in [New York, New York], not later
than [1:00 p.m., New York City] time, on the business day prior to the Closing
Date.
4. Representations, Warranties and Agreements of the Underwriters. Each
Underwriter represents and warrants to, and agrees with, the Company that:
(a) It proposes to offer the Securities for sale to the public as set
forth in the Final Prospectus, and all offers and sales of the Securities
made by it shall be so made in compliance with all applicable laws and
regulations.
(b) If any of the Securities to be acquired by it constitute "residual
interests" in a "real estate mortgage investment conduit" (a "REMIC") as
those terms are defined, respectively, in Sections 860G and 860D of the
Internal Revenue Code of 1986 (the "Code"; and such Securities, "Residual
Securities"), it will deliver on or before the Closing Date, in connection
with such acquisition, a transfer affidavit and agreement, substantially in
the form required pursuant to Section ______ of the Pooling Agreement, upon
which the Company and the Trustee may rely. In addition, it shall pay
directly or reimburse the Company upon demand for: (i) any and all taxes
(including, without limitation, penalties and interest) owed or asserted to
be owed by the Company as a result of a claim by the Internal Revenue
Service that the transfer of any Residual Securities to such Underwriter
hereunder or any transfer thereof by such Underwriter may be disregarded
for federal tax purposes and (ii) any and all losses, claims, damages and
liabilities, including, without limitation, attorney's fees and expenses,
arising out of any failure of such Underwriter to make payment or
reimbursement in connection with any such assertion as required in clause
(i) above. Furthermore, it acknowledges that on the Closing Date,
immediately after the transactions described herein, it will be the owner
of the Residual Securities, if any, acquired by it for federal tax
purposes, and it shall not assert in any proceeding that the transfer of
such Residual Securities from the Company to such Underwriter should be
disregarded for any purpose.
5. Agreements of the Company. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless
the Company has furnished the Representatives a copy for their review prior
to filing and will not file any such proposed amendment or supplement to
which the Representatives reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be mailed to the
Commission for filing pursuant to Rule 424 by first class certified or
registered mail or by overnight courier and will cause the Final Prospectus
to be filed with the Commission pursuant to said Rule. The Company will
advise the Representatives promptly (i) when the Final Prospectus shall
have been mailed to the Commission for filing pursuant to Rule 424, (ii)
when any amendment to the Registration Statement relating to the Securities
shall have become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment of or supplement to
the Final Prospectus or for any additional information relating to the
Securities, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order described in clause (iv) of the preceding sentence and,
if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will cause or, if appropriate, will have caused any
Computational Materials and ABS Term Sheets (each as defined in Section 10
below) with respect to the Securities which are delivered by the
Underwriters to the Company pursuant to or as contemplated by Section 10 to
be filed with the Commission on a Current Report on Form 8-K (the "Current
Report") pursuant to Rule 13a-11 under the Exchange Act not later than, in
each such case, the business day immediately following [the earlier of (i)]
the day on which such Computational Materials are delivered to counsel for
the Company by the Underwriters prior to 10:30 a.m., New York City time,
[and (ii) the date hereof,] and will promptly advise the Underwriters when
each such Current Report has been so filed. Each such Current Report shall
be incorporated by reference in the Final Prospectus and the Registration
Statement. Notwithstanding the two preceding sentences, the Company shall
have no obligation to file materials provided by the Underwriters pursuant
to or as contemplated by Section 10 which, in the reasonable determination
of the Company after making reasonable efforts to consult with the
Underwriters, are not required to be filed pursuant to the No-Action
Letters (as defined in Section 10 below), or which contain erroneous
information or contain any untrue statement of a material fact or, which,
when read in conjunction with the Final Prospectus, 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
provided by the Underwriters to the Company pursuant to Section 10 hereof.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs 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 to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it shall be necessary to
amend or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance and will use its best efforts to cause any required
post-effective amendment to the Registration Statement containing such
amendment to be made effective as soon as possible; provided, however, that
the Company will not be required to file any such amendment or supplement
with respect to any Computational Materials and/or ABS Term Sheets
incorporated by reference in the Final Prospectus other than any amendments
or supplements of such Computational Materials and/or ABS Term Sheets that
are furnished to the Company pursuant to Section 10(d) hereof which the
Company determines to file in accordance therewith.
[(d) The Company will make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 60
days after the close of the period covered thereby, an earnings statement
(in form complying with the provisions of Rule 158 of the regulations under
the Act) covering a twelve month period beginning not later than the first
day of the Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.]
(e) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, executed copies of the Registration
Statement (including exhibits thereto) and each amendment thereto which
shall become effective on or prior to the Closing Date and, so long as
delivery of a prospectus relating to the Securities by an Underwriter or
dealer may be required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto (other than exhibits to a Current Report) as the
Representatives may reasonably request. The Company will pay the expenses
of printing all documents relating to the initial offering of the
Securities, provided that any additional expenses incurred in connection
with the requirement of delivery of a market-making prospectus will be
borne by ________________________________.
(f) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may
reasonably designate, will maintain such qualifications in effect so long
as required for the distribution of the Securities and will arrange for the
determination of the legality of the Securities for purchase by
institutional investors; provided, however, that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the date hereof, as of the date of the effectiveness of any amendment to
the Registration Statement filed prior to the Closing Date (including the filing
of any document incorporated by reference therein) and as of the Closing Date,
to the accuracy of the statements of the Company made in any certificates
delivered pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
the Final Prospectus shall have been filed or mailed for filing with the
Commission within the time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives the
opinion of [Cadwalader, Xxxxxxxxxx & Xxxx], counsel for the Company and the
Underwriters, dated the Closing Date, to the effect of paragraphs (iii),
(vi), (vii), (ix), (xi), (xiv), (xv), (xvi) and (xvii) below, and the
opinion of [Xxxxxx X. Xxxx, Xx.], special counsel to the Company, dated the
Closing Date, to the effect of paragraphs (i), (ii), (iv), (v), (viii),
(x), (xii) and (xiii) below:
(i) the Company is a duly incorporated and validly existing
corporation in good standing under the laws of the State of Delaware,
has the corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus;
(ii) the Company has no subsidiaries and is not required to be
qualified or licensed to do business as a foreign corporation in any
jurisdiction;
(iii) the Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(iv) the Pooling Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Securities have been duly authorized by the Company;
(vi) upon due authorization, execution and delivery by the
parties thereto, the Pooling Agreement will constitute a legal, valid
and binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as such enforceability may be
limited by (A) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors generally, and (B) general
principles of equity, whether enforcement is sought in a proceeding in
equity or at law;
(vii) the Securities, when duly and validly executed,
authenticated and delivered in accordance with the Pooling Agreement
and paid for in accordance with this Agreement, will be entitled to
the benefits of the Pooling Agreement;
(viii) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final Prospectus,
and there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required;
(ix) the Registration Statement has become effective under the
Act; to the best knowledge of such counsel no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened; the
Registration Statement, the Final Prospectus and each amendment
thereof or supplement thereto (other than the financial statements and
other financial and statistical information contained therein or
incorporated by reference therein, as to which such counsel need
express no opinion) comply as to form in all material respects with
the applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; and such counsel has no reason to believe
that the Registration Statement or any amendment thereof at the time
it became effective contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Final Prospectus, as amended or supplemented, contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(x) this Agreement has been duly authorized, executed and
delivered by the Company;
(xi) upon due authorization, execution and delivery by the
parties hereto, this Agreement will constitute a legal, valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be
limited by (A) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors generally, (B) general
principles of equity, whether enforcement is sought in a proceeding in
equity or at law, and (C) public policy considerations underlying the
securities laws, to the extent that such public policy considerations
limit the enforceability of any of the provisions of this Agreement
which purport to provide indemnification from securities law
liabilities;
(xii) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters and such other approvals (specified
in such opinion) as have been obtained;
(xiii) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach of, or constitute a default under the certificate of
incorporation or by-laws of the Company or, to the best knowledge of
such counsel, the terms of any indenture or other agreement or
instrument known to such counsel and to which the Company is a party
or by which it is bound, or any order or regulation known to such
counsel to be applicable to the Company of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company;
(xiv) the Pooling Agreement is not required to be qualified under
the Trust Indenture Act of 1939, as amended;
(xv) neither the Company nor the Trust Fund is required to be
registered under the Investment Company Act of 1940, as amended;
(xvi) the statements in the Final Prospectus under the headings
"Certain Federal Income Tax Consequences" and "ERISA Considerations",
to the extent that they constitute matters of State of New York or
federal law or legal conclusions with respect thereto, while not
purporting to discuss all possible consequences of investment in the
Certificates, are correct in all material respects with respect to
those consequences or matters that are discussed therein; and
(xvii) assuming compliance with the provisions of the Pooling
Agreement, for federal income tax purposes, each of REMIC I and REMIC
II [as such terms are defined in the Pooling Agreement] will qualify
as a REMIC within the meaning of Sections 860A through 860G (the
"REMIC Provisions") of the Code, and (i) _______________________ will
be the "regular interests" in REMIC I, (ii) the ______________________
will be the sole class of "residual interests" in REMIC I, (iii) the
__________________________ will evidence "regular interests" in REMIC
II and (iv) the __________ ____________ will be the sole class of
"residual interests" in REMIC II, each within the meaning of the REMIC
Provisions in effect on the date hereof.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York or the United States or the laws of the State of Delaware other
than its general corporation law, to the extent deemed proper and specified
in such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for the
Underwriters; and (B) as to matters of fact, to the extent deemed proper,
on certificates of responsible officers of the Company and public
officials.
(c) [The Representatives shall have received copies, addressed to them
or on which they are entitled to rely, of opinions of counsel furnished to
the rating agencies rating the Securities as set forth on Schedule I hereto
addressing the characterization of the transfer by the Company to the
Trustee of its right, title and interest in and to the mortgage loans
underlying the Securities (the "Mortgage Loans") in accordance with the
Pooling Agreement, and the sale of the Securities to the Underwriters
hereunder, as a sale of the interests in the Mortgage Loan evidenced by the
Securities rather than a financing or, alternatively, an opinion with
respect to (i) the Trustee's having as a perfected first priority security
interest in the Mortgage Loans and (ii) the non-consolidation of the
Company and ______________ in the event of a conservatorship or
receivership of ________________.]
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or
President and Chief Executive Officer or an Executive Vice President or
Treasurer and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement (excluding any Current
Reports and any other documents incorporated by reference therein), the
Final Prospectus and this Agreement and that to the best of their
knowledge:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no proceedings
for that purpose have been instituted or threatened; and
(iii) since the respective dates as of which information is given
in the Final Prospectus, there has been no material adverse change in
the condition (financial or other), earnings, business or properties
of the Company, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Prospectus.
(e) On the date hereof, ______________________ and/or any other firm
of certified independent public accountants acceptable to the
Representatives shall have furnished to the Representatives a letter, dated
the date hereof, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable published rules and
regulations thereunder, and stating in effect that using the assumptions
and methodology used by the Company, all of which shall be described in
such letter, they have recalculated such numbers and percentages set forth
in the Final Prospectus as the Representatives may reasonably request and
as are agreed to by ______________________, compared the results of their
calculations to the corresponding items in the Final Prospectus, and found
each such number and percentage set forth in the Final Prospectus to be in
agreement with the results of such calculations. To the extent historical
financial information with respect to the Company and/or historical
financial, delinquency or related information with respect to one or more
servicers is included in the Final Prospectus, such letter or letters shall
also relate to such information.
(f) The Securities shall have received the rating or ratings from the
rating agency or rating agencies set forth in Schedule I hereto.
(g) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates, opinions and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law 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 for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
omission or alleged omission (in the case of any Computational Materials or ABS
Term Sheets in respect of which the Company agrees to indemnify any Underwriter,
as set forth below, when such are read in conjunction with the Final Prospectus)
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; 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 by or on behalf
of any Underwriter through the Representatives 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 results (or is alleged to have resulted)
directly from an error (a "Collateral Error") in the information concerning the
Mortgage Loans furnished by the Company to any Underwriter in writing or by
electronic transmission that was used in the preparation of any Computational
Materials or ABS Term Sheets included in such Current Report (or amendment or
supplement thereof), (ii) such indemnity with respect to the Basic Prospectus or
any Preliminary Final Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Securities
which are the subject thereof if such person did not receive a copy of the Final
Prospectus (or the Final Prospectus as amended or supplemented) excluding
documents incorporated therein by reference at or prior to the confirmation of
the sale of such Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Basic Prospectus or any Preliminary Final Prospectus was
corrected in the Final Prospectus (or the Final Prospectus as amended or
supplemented), and (iii) such indemnity with respect to any Collateral Error
shall not inure to the benefit of any Underwriter (or any person controlling any
Underwriter) from whom the person asserting any loss, claim, damage or liability
received any Computational Materials or ABS Term Sheets that were prepared on
the basis of such Collateral Error, if, prior to the time of confirmation of the
sale of the Securities to such person, the Company notified such Underwriter in
writing of the Collateral Error or provided in written or electronic form
information superseding or correcting such Collateral Error (in any such case, a
"Corrected Collateral Error"), and such Underwriter failed to notify such person
thereof or to deliver such person corrected Computational Materials and/or ABS
Term Sheets, as applicable. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to (A) written
information relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter through the Representatives specifically for use in
the preparation of the documents referred to in the foregoing indemnity, or (B)
any Computational Materials or ABS Term Sheets furnished to the Company by any
Underwriter pursuant to or as contemplated by Section 10 and incorporated by
reference in the Registration Statement or the Final Prospectus (except that no
such indemnity shall be available for any losses, claims, damages or
liabilities, or actions in respect thereof resulting from any Collateral Error,
other than a Corrected Collateral Error). This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page and under the heading "Underwriting" or "Plan of Distribution" in any
Preliminary Final Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in the documents referred to in the foregoing indemnity (other than
any Computational Materials and/or ABS Term Sheets furnished to the Company by
any Underwriter), and you, as the Representatives, confirm that such statements
are correct.
(c) Promptly after receipt by an indemnified party under this Section 8 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 this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the 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; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a) and the Company in the case of subparagraph (b), representing the
indemnified parties under subparagraph (a) or (b), as the case may be, who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) or (b) of this Section 8
is due in accordance with its terms but is for any reason held by a court to be
unavailable from the Company or the Underwriters on the grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to which
the Company and one or more of the Underwriters may be subject, as follows:
(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, in such proportion so that the Underwriters
are responsible for that portion represented by the percentage that the
underwriting discount bears to the sum of such discount and the purchase
price of the Securities specified in Schedule I hereto and the Company is
responsible for the balance; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible under this
subparagraph (i) for any amount in excess of the underwriting discount
applicable to the Securities purchased by such Underwriter hereunder; and
(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, in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof) as
well as any other relevant equitable considerations. The relative 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 in such Computational Materials or ABS
Term Sheets results from information prepared by the Company on the one
hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
Notwithstanding anything to the contrary in this paragraph (d), 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 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
shall have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the preceding sentence of
this paragraph (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 paragraph (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 other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bear to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Computational Materials and ABS Term Sheets. (a) Not later than 10:30
a.m., New York City time, on the date hereof, the Underwriters shall deliver to
the Company five complete copies of all materials provided by the Underwriters
to prospective investors in the Securities which constitute either (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, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & 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") or (ii) "ABS 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 together with the Xxxxxx Letters,
the "No-Action Letters"), if the filing of such materials with the Commission is
a condition of the relief granted in such letters and, in the case of any such
materials that constitute "Collateral Term Sheets" within the meaning of the PSA
Letter, such Collateral Term Sheets have not previously been delivered to the
Company as contemplated by Section 10(b)(i) below. Each delivery of
Computational Materials and/or ABS Term Sheets to the Company pursuant to this
paragraph (a) shall be effected by delivering four copies of such materials to
counsel for the Company on behalf of the Company at the address specified in
Section 13 hereof and one copy of such materials to the Company.
(b) The Underwriters represent and warrant to and agree with the
Company, as of the date hereof and as of the Closing Date, that:
[(i) if the Underwriters have provided any Collateral Term Sheets to
potential investors in the Securities prior to the date hereof and if the
filing of such materials with the Commission is a condition of the relief
granted in the PSA Letter, then in each such case the Underwriters
delivered four copies of such materials to counsel for the Company on
behalf of the Company at the address specified in Section 13 hereof and one
copy of such materials to the Company no later than 10:30 a.m., New York
City time, on the first business day following the date on which such
materials were initially provided to a potential investor;]
(ii) the Computational Materials (either in original, aggregated or
consolidated form) and ABS Term Sheets furnished to the Company pursuant to
Section 10(a) or as contemplated in Section 10(b)(i) constitute all of the
materials relating to the Securities furnished by the Underwriters (whether
in written, electronic or other format) to prospective investors in the
Securities prior to the date hereof, [except for any Preliminary Final
Prospectus and any Computational Materials and ABS Term sheets which are
not required to be filed with the Commission in accordance with the
No-Action Letters,] and all Computational Materials and ABS Term Sheets
provided to potential investors in the Securities comply with the
requirements of the No-Action Letters;
(iii) on the respective dates any such Computational Materials and/or
ABS Term Sheets with respect to the Securities referred to in Section
10(b)(ii) were last furnished to each prospective investor, on the date of
delivery thereof to the Company pursuant to or as contemplated by this
Section 10 and on the Closing Date, such Computational Materials and/or ABS
Term Sheets did not and will not include any untrue statement of a material
fact, or, when read in conjunction with the Final Prospectus, omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading;
(iv) at the time any Computational Materials or ABS Term Sheets with
respect to the Securities were furnished to a prospective investor and on
the date hereof, the Underwriters possessed, and on the date of delivery of
such materials to the Company pursuant to or as contemplated by this
Section 10 and on the Closing Date, the Underwriters will possess, the
capability, knowledge, expertise, resources and systems of internal control
necessary to ensure that such Computational Materials and/or ABS Term
Sheets conform to the representations and warranties of the Underwriters
contained in subparagraphs (ii) and (iii) above of this paragraph (b);
(v) all Computational Materials and ABS Term Sheets with respect to
the Securities furnished to potential 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 Computational Materials or ABS Term Sheets, is not
responsible for the accuracy thereof and has not authorized the
dissemination thereof;
[(vi) all Collateral Term Sheets with respect to the Securities
furnished to potential investors contained and will contain a legend,
prominently displayed on the first page thereof, indicating that the
information contained therein will be superseded by the description of the
Mortgage Loans contained in the Final Prospectus and, except in the case of
the initial Collateral Term Sheet, that such information supersedes the
information in all prior Collateral Term Sheets;] and
(vii) on and after the date hereof, the Underwriters shall not deliver
or authorize the delivery of any Computational Materials, ABS Term Sheets
or other materials relating to the Securities (whether in written,
electronic or other format) to any potential investor unless such potential
investor has received a Final Prospectus prior to or at the same time as
the delivery of such Computational Materials, ABS Term Sheets or other
materials.
Notwithstanding the foregoing, the Underwriters make no representation or
warranty as to whether any Computational Materials or ABS Term Sheets with
respect to the Securities included or will include any untrue statement
resulting directly from any Collateral Error (except any Corrected Collateral
Error, with respect to materials prepared after the receipt by the Underwriters
from the Company of notice of such Corrected Collateral Error or materials
superseding or correcting such Corrected Collateral Error).
(c) The Underwriters acknowledge and agree that the Company has not
authorized and will not authorize the distribution of any Computational
Materials or ABS Term Sheets with respect to the Securities to any
prospective investor, and agree that any such Computational Materials
and/or ABS Term Sheets furnished to prospective investors shall include a
disclaimer in the form set forth in paragraph (b)(v) above. The
Underwriters agree that they will not represent to potential investors that
any Computational Materials and/or ABS Term Sheets with respect to the
Securities were prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, it shall be necessary to amend or
supplement the Final Prospectus as a result of an untrue statement of a
material fact contained in any Computational Materials or ABS Term Sheets
provided by the Underwriters pursuant to or as contemplated by this Section
10 or the omission to state therein a material fact required, when
considered in conjunction with the Final Prospectus, to be stated therein
or necessary to make the statements therein, when read in conjunction with
the Final Prospectus, not misleading, or if it shall be necessary to amend
or supplement any Current Report to comply with the Act or the rules
thereunder, the Underwriters, at their expense, 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. The Underwriters represent and warrant
to the Company, as of the date of delivery of such amendment or supplement
to the Company, that such amendment or supplement will not include any
untrue statement of a material fact or, when read in conjunction with the
Final Prospectus, omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. 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
Final Prospectus, 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 the Underwriters to the Company
pursuant to this paragraph (d)) or (ii) such filing is not required under
the Act.
(e) The Underwriters (at their own expense) further agree to provide
to the Company any accountants' letters obtained relating to the
Computational Materials and/or ABS Term Sheets, which accountants' letters
shall be addressed to the Company or shall state that the Company may rely
thereon; provided that the Underwriters shall have no obligation to procure
such letter.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal or
___________________ authorities or (iii) there shall have occurred any outbreak
or material escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Representatives, impracticable to market the Securities.
12. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof and this Section 12 shall survive the termination or cancellation
of this Agreement.
13. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto, with a copy to: ____________________________________________, Attn:
__________________________; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn: __________________, with a copy to:
____________________________, Attn: _______________________.
14. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
15. Applicable Law. This Agreement will 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,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
NATIONSLINK FUNDING CORPORATION
By:_________________________
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I
hereto.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
[NAMES OF ADDITIONAL REPRESENTATIVES]
By: NATIONSBANC XXXXXXXXXX SECURITIES LLC
By:__________________________
For themselves and the other
several Underwriters, if any, named
in Schedule II to the foregoing
Agreement.
SCHEDULE I
Underwriting Agreement dated ________, 199_
Registration Statement No. 33-_______
Representatives:
NationsBanc Xxxxxxxxxx Securities LLC
[Names of Additional Representatives]
Title, Purchase Price and Description of Securities:
Title: NationsLink Funding Corporation Mortgage Pass-Through Certificates,
Series 199_-_
================================================================================
Principal Purchase
Class Amount Price Rating
--------------------------------------------------------------------------------
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================================================================================
Closing Time, Date and Location:
10:00 A.M. on ___________, 199_ at the offices of _______
______________________________.
SCHEDULE II
Principal Purchase
Underwriter Class Amount Price
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