EXHIBIT 1.1
$___________ (approximate)
Mortgage Pass-Through Certificates,
Series 1997-1
(DATE)
UNDERWRITING AGREEMENT
----------------------
(Underwriter)
Ladies and Gentlemen:
SECTION 1. Introduction.
------------ The Provident Bank, an Ohio banking
corporation (the "Company"), proposes to sell to you (sometimes referred to
herein as the "Underwriter"), $__________ principal amount of its Mortgage
Pass-Through Certificates identified in Schedule I hereto (the "Offered
Certificates") having the aggregate Initial Certificate Balances set forth in
Schedule I (subject to an upward or downward variance, not to exceed the
percentage set forth in such Schedule I, the precise Initial Certificate
Balance within such range to be determined by the Company in its sole discre-
tion). The Offered Certificates, together with the ___ Classes of
subordinate certificates (the "Non-Offered Certificates") and the Class of
residual certificates (the "Residual Certificates", and together with the
Offered Certificates and the Non-Offered Certificates, the "Certificates"),
evidence the entire ownership interest in the assets of a trust fund (the
"Trust") consisting primarily of fully-amortizing, fixed interest rate,
conventional mortgage loans, as described in Schedule I (the "Mortgage
Loans") originated or acquired by the Company in its ordinary course of
business, and having, as of the close of business on the date specified in
Schedule I as the cut-off date (the "Cut-Off Date"), the aggregate principal
balance set forth in Schedule I. An election will be made to treat the Trust
as a real estate mortgage investment conduit (a "REMIC") for purposes of
federal income taxation. The Certificates are to be issued pursuant to a
pooling and servicing agreement (the "Pooling Agreement"), dated as of the
Cut-Off Date, among the Company, as seller and master servicer (in such
capacities, the "Seller" and the "Master Servicer", respectively) and (
), as trustee (the "Trustee"). The Offered Certificates will be
issued in the denominations specified in Schedule I.
Capitalized terms used herein that are not otherwise defined herein
have the meanings assigned thereto in the Pooling Agreement.
SECTION 2. Representations and Warranties of the
-------------------------------------
Company.
------- Each of the Seller and the Company represents and warrants to the
Underwriter as follows:
(a) A Registration Statement on Form S-3 (File No. 333-
____________) (i) has been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "Act")
and the rules and regulations (the "Rules and Regulations of the United
States Securities and Exchange Commission (the "Commission") thereunder,
(ii) been filed with the Commission under the Act and (iii) became effec-
tive under the Act. Copies of such Registration Statement have been
delivered by the Company to the Underwriter. As used in this Agreement,
"Effective Time" means the date and the time as of which such
Registration Statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time. "Registration Statement"
means such registration statement at the Effective Time, including any
documents incorporated by reference therein at such time; "Preliminary
Prospectus" means each prospectus included in such Registration
Statement, including a preliminary prospectus supplement which, as
completed, may be used in connection with the sale of the Offered
Certificates; and "Prospectus" means such final prospectus, as
supplemented by a prospectus supplement (the "Prospectus Supplement")
relating to the Offered Certificates in the form first filed with the
Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the Rules
and Regulations. Reference made herein to any Preliminary Prospectus or
to the 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 Act, as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any document filed under the Securities
Exchange Act of 1934 (the "Exchange Act") after the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference to any amendment to
the Registration Statement shall be deemed to include any report of the
Company filed with the Commission pursuant to Section 13(a) or 15(d) of
the Exchange Act after the Effective Time that is incorporated by
reference in the Registration Statement. There are no contracts or
documents of the Company which are required to be filed as exhibits to
the Registration Statement pursuant to the Act which have not been so
filed or incorporated by reference therein on or prior to the Effective
Date. The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
To the extent that the Underwriter (i) has provided to the Company
Collateral Term Sheets (as hereinafter defined) that the Underwriter has
provided to a prospective investor, the Company has filed such
Collateral Term Sheets as an exhibit to a report on Form 8-K within two
business days of its receipt thereof, or (ii) has provided to the
Company Structural Term Sheets or Computational Materials (each as
defined below) that the Underwriter has provided to a prospective
investor, the Company will file or cause to be filed with the Commission
a report on Form 8-K containing such Structural Term Sheet and
Computational Materials, as soon as reasonably practicable after the
date of this Agreement, but in any event, not later than the date on
which the Prospectus is filed with the Commission pursuant to Rule 424
of the Rules and Regulations.
(b) The documents incorporated by reference in the Preliminary
Prospectus or Prospectus, as the case may be, 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 Act or the Exchange Act, as
applicable, and the Rules and Regulations, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Preliminary Prospectus or
Prospectus, as the case may be, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange Act, as
applicable, and the Rules and Regulations and will not contain an 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.
(c) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the Act and the Rules and Regulations. The Registration
Statement, as of the Effective Date thereof, did not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Prospectus, as amended or supplemented at the Closing
Date, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
contained therein, in the light of the circumstances under which they
were made, not misleading; except that the foregoing does not apply to
statements or omissions in the Registration Statement or the Prospectus,
as amended or supplemented, if applicable, based upon written
information furnished to the Company by the Underwriter specifically for
use therein.
(d) Since the respective dates as of which information is given in
the Prospectus, except as otherwise stated therein, (i) there has been
no material adverse change in the condition, financial or otherwise,
earnings, affairs or business prospects of the Company, whether or not
arising in the ordinary course of business and (ii) there have been no
material transactions entered into by the Company other than those in
the ordinary course of business.
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its respective
jurisdiction of incorporation with corporate power and authority to
execute, deliver and perform the transactions contemplated by this
Agreement and the Pooling Agreement.
(f) The Company is not in violation of its respective charter or
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or any of its properties may be
bound; no consent, approval, authorization or order of any court or
governmental authority or agency is required for the consummation by the
Company of the transactions contemplated by this Agreement, except such
as may be required under the Act, the Rules and Regulations or state
securities or Blue Sky laws; and the execution and delivery of this
Agreement and the Pooling Agreement and the consummation of the
transactions contemplated herein and therein by the Company will not
conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company is a party or by which such party may be bound or to
which any of the property or assets of the Company is subject, nor will
such action result in any violation of the provisions of the charter or
by-laws of the Company or any law, administrative regulation or
administrative or court decree applicable to the Company.
(g) There is no action, investigation, suit or proceeding before
or by any court or governmental agency or body, domestic or foreign, now
pending or, to the knowledge of the Company, threatened against or
affecting the Company, which might result in any material adverse change
in the condition, financial or otherwise, earnings, affairs or business
prospects of the Company, or might materially and adversely affect the
properties or assets thereof or might materially and adversely affect
the performance by the Company of its obligations under, or the validity
and enforceability of, this Agreement or the Pooling Agreement.
(h) This Agreement has been, and the Pooling Agreement when
executed and delivered as contemplated hereby and thereby will have
been, duly authorized, executed and delivered by the Company, and this
Agreement constitutes, and the Pooling Agreement, when executed and
delivered as contemplated herein, will constitute, legal, valid and
binding instruments enforceable against the Company in accordance with
their respective terms, subject as to enforceability to (x) applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally, (y) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law), and (z) with respect to rights of indemnity under this
Agreement, limitations of public policy under applicable securities
laws.
(i) The Certificates have been duly authorized, and, when executed
and authenticated in accordance with the provisions of the Pooling
Agreement and delivered to and, with respect to the Offered
Certificates, paid for by the Underwriter in accordance with this
Agreement, will be validly issued and outstanding and entitled to the
benefits of the Pooling Agreement.
(j) At the time of execution and delivery of the Pooling
Agreement, the Company will: (i) have beneficial ownership of the
Mortgage Loans conveyed by the Seller, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively, "Liens"); (ii) not have assigned to any person
(other than the Trustee) any of its right, title or interest in the
Mortgage Loans, in the Purchase Agreement or in the Pooling Agreement;
and (iii) have the power and authority to sell its interest in the
Mortgage Loans to the Trustee and to sell the Offered Certificates to
the Underwriter. Upon execution and delivery of the Pooling Agreement
by the Trustee, the Trustee will have acquired beneficial ownership of
all of the Company's right, title and interest in and to the Mortgage
Loans. Upon delivery to the Underwriter of the Offered Certificates,
the Underwriter will have good title to the Offered Certificates free of
any Liens.
(k) Neither the Company nor the Trust created by the Pooling
Agreement is an "investment company" within the meaning of such term
under the Investment Company Act of 1940 (the "1940 Act") and the rules
and regulations of the Commission thereunder.
(l) At the Closing Date, the Certificates and the Pooling
Agreement will conform in all material respects to the descriptions
thereof contained in the Prospectus.
(m) At the Closing Date, the Class A Certificates shall have been
rated in the highest rating category by at least two nationally
recognized rating agencies.
(n) The Company is not aware of (i) any request by the Commission
for any further amendment of the Registration Statement or the
Prospectus or for any additional information, (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceed-
ing for that purpose or (iii) any notification with respect to the
suspension of the qualification of the Offered Certificates for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(o) _____________ is an independent public accountant with respect
to the Master Servicer, the Seller and the Company as required by the
Act and the Rules and Regulations.
(p) The Seller possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business
now conducted by it and as described in the Prospectus, and the Company
has not received notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
conduct of its business, operations or financial condition.
(q) The Pooling Agreement is not required to be registered under
the Trust Indenture Act of 1939, as amended, as in effect on the date
hereof.
(r) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the Pooling
Agreement and the Certificates have been paid or will be paid at or
prior to the Closing Date.
(s) On the Closing Date, each of the representations and
warranties of the Company set forth in the Pooling Agreement and in the
Loan Sale Agreement will be true and correct in all material respects.
Any certificate signed by an officer of the Company and delivered
to you or counsel for the Underwriter in connection with an offering of the
Offered Certificates shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby to each person
to whom the representations and warranties in this Section 2 are made.
SECTION 3. Purchase, Sale and Delivery of Offered
--------------------------------------
Certificates.
------------ On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth,
the Company agrees to instruct the Trustee to issue and agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Company at a
purchase price set forth in Schedule 1 hereto, the respective principal
amount of Offered Certificates set forth in Schedule I hereto.
The Company will deliver the Offered Certificates to the Under-
writer, against payment of the purchase price therefor in same day funds
wired to such bank as may be designated by the Company, or by such other
manner of payment as may agreed upon by the Company and you, at the offices
of Xxxxx & Xxxx LLP, One World Trade Center, New York, New York at 10:00
A.M., New York time, on _______________ or at such other place or time not
later than seven full business days thereafter as you and the Company
determine, such time being referred to herein as the "Closing Date."
The Offered Certificates so to be delivered will be in such
denominations and registered in such names as you request two full business
days prior to the Closing Date, as the case may be, and will be made
available for examination by the Underwriter no later than 2:00 p.m. New York
City time on the first business day prior to the Closing Date.
SECTION 4. Offering by the Underwriter.
--------------------------- It is understood that the
Underwriter proposes to offer the Offered Certificates subject to this
Agreement for sale to the public on the terms as set forth in the Prospectus.
SECTION 5. Covenants of the Company.
------------------------ The Company hereby covenants
and agrees with the Underwriter that:
(a) Immediately following the execution of this Agreement, the
Company will prepare the Prospectus Supplement in a form approved by the
Underwriter setting forth the amount of Offered Certificates covered
thereby and the terms thereof not otherwise specified in the Prospectus,
the price at which the Offered Certificates are to be purchased by the
Underwriter from the Company, either the initial public offering price
or the method by which the price at which the Offered Certificates are
to be sold will be determined, the selling concessions and allowances,
if any, and such other information as the Company deems appropriate in
connection with the offering of such Offered Certificates, but the
Company will not file any amendments to the Registration Statement as in
effect with respect to the Offered Certificates, or any amendments or
supplements to the Prospectus, without your consent, which will not be
unreasonably withheld.
(b) If, during such period of time after the first date of the
public offering of the Offered Certificates as in the opinion of counsel
for the Underwriter a prospectus relating to the Offered Certificates is
required by law to be delivered in connection with sales by the
Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would, in the judgment of the
Underwriter and its counsel, include any untrue statement of a material
fact, or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend or supplement the
Prospectus to comply with the Act or any other law, the Company will
promptly prepare and file with the Commission, an amendment or supple-
ment which will correct such statement or omission or an amendment that
will effect such compliance and will notify you and, upon your request,
prepare and furnish without charge to the Underwriter and to any dealer
in securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance.
(c) The Company will deliver to the Underwriter such number of the
following documents as the Underwriter shall reasonably request: (i)
conformed copies of the Registration Statement and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein); (ii) the Prospectus and any amendment or supplement thereto;
and (iii) any document incorporated by reference in the Prospectus
(including exhibits thereto).
(d) The Company will endeavor, in cooperation with you, to qualify
the Offered Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United
States as you may designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the
Offered Certificates; provided, however, that the Company shall not be
required to qualify to do business in any jurisdiction where it is now
not qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction in which it is now
subject to service of process. The Company will file such statements
and reports as may be required by the laws of each jurisdiction in which
the Offered Certificates have been qualified as above provided.
(e) The Company will notify you immediately, and confirm the
notice in writing, of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(f) The Company will make generally available to holders of the
Offered Certificates as soon as practicable, but in any event not later
than 90 days after the close of the period covered thereby, an earnings
statement of the Trust (which need not be audited) complying with
Section 11(a) of the 1933 Act and the Rules and Regulations (including,
at the option of the Company, Rule 158) and covering a period of at
least twelve consecutive months beginning not later than the first day
of the first fiscal quarter following the Closing Date.
(g) The Company will not, without your prior written consent,
publicly offer or sell or contract to sell any mortgage pass-through
certificates, mortgage pass-through notes or collateralized mortgage
obligations or other similar securities representing interests in or
secured by other mortgage-related assets originated or owned by either
such entity for a period of 30 days following the commencement of the
offering of the Offered Certificates to the public.
(h) So long as the Offered Certificates shall be outstanding, the
Company will deliver to the Underwriter the annual statement as to
compliance delivered to the Trustee pursuant to Section ____ of the
Pooling Agreement and the annual statement of a firm of independent
public accountants furnished to the Trustee pursuant to Section ____ of
the Pooling Agreement, as soon as such statements are furnished to the
Trustee.
(i) The Company will apply the net proceeds from the sale of the
Offered Certificates in the manner set forth in the Prospectus.
SECTION 6. Conditions to the Obligations of the
------------------------------------
Underwriter.
___________ The obligations of the Underwriter to purchase and pay for the
Offered Certificates on the Closing Date will be subject to the accuracy of
the representations and warranties on the part of the Company herein as of
the date hereof and as of the Closing Date with the same force and effect as
if made as of that date, to the performance by the Company of its respective
obligations hereunder and to the following additional conditions precedent:
(a) The Underwriter shall have received confirmation of the
effectiveness of the Registration Statement. Prior to the Closing Date
no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted, or to the knowledge of the Company or you, shall have
been 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.
(b) The Underwriter shall not have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact or omits to state a fact which, in the
opinion of Xxxxx & Wood LLP, counsel for the Underwriter, is material
and is required to be stated therein or is necessary to make the
statements therein not misleading.
(c) You shall have received an opinion of counsel to the Company,
dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws
of Ohio with corporate power and authority to execute, deliver and
perform the transactions contemplated by this Agreement and the
Pooling Agreement;
(ii) Each of this Agreement and the Pooling Agreement has been
duly authorized, executed and delivered by the Company;
(iii) The Certificates have been duly authorized, executed and
delivered by the Company;
(iv) No consent, approval, authorization or order of any court
or governmental authority or agency is required for the
consummation by the Company of the transactions contemplated by the
terms of this Agreement or the Pooling Agreement, except such as
may be required under the state securities or Blue Sky laws of any
jurisdiction in connection with the offering, sale or acquisition
of the Certificates and such other approvals as have been obtained;
(v) The sale of the Mortgage Loans to the Trust pursuant to
the Pooling Agreement, the execution and delivery of this Agreement
and the Pooling Agreement by the Company and the consummation of
the transactions contemplated herein or therein do not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to any material
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company is a party or by which it may be
bound or to which any of the property or assets of the Company is
subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company, or any law,
administrative regulation or administrative or court decree
applicable to the Company;
(vi) Assuming the Pooling Agreement has been duly authorized,
executed and delivered by the parties thereto, the Pooling
Agreement constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting
creditors' rights generally and to general principles of equity
regardless of whether enforcement is sought in a proceeding in
equity or at law;
(vii) The Registration Statement has become effective under the
Act; no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or threatened under the Act; and the Registration
Statement, the Prospectus and each amendment or supplement thereto
(other than the financial and statistical information therein as to
which such counsel need express no opinion) as of their respective
effective or issue dates complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations;
(viii) The Pooling Agreement and the Certificates conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus;
(ix) The Pooling Agreement will not be required to be
qualified under the Trust Indenture Act of 1939, as amended, and
neither the Company nor the Trust is required to be registered
under the Investment Company Act of 1940, as amended;
(x) Assuming that the Certificates have been duly authorized,
executed and authenticated in the manner contemplated in the
Pooling Agreement, when delivered and paid for by you as provided
in this Agreement, the Certificates purchased by you will be
validly issued and outstanding and entitled to the benefits of the
Pooling Agreement;
(xi) There are no legal or governmental actions,
investigations or proceedings pending to which the Company is a
party, or, to the best knowledge of such counsel, threatened
against the Company, (A) asserting the invalidity of this Agreement
or the Pooling Agreement, (B) seeking to prevent the sale of the
Mortgage Loans to the Trust or the consummation of any of the
transactions contemplated by this Agreement or the Pooling
Agreement or (C) which might materially and adversely affect the
performance by the Company of its obligations under, or the
validity or enforceability of, the Pooling Agreement or the
Mortgage Loans;
(xii) The conditions to the use by the Company of a
registration statement on Form S-3 under the Securities Act, as set
forth in the General Instructions to Form S-3, have been satisfied
with respect to the Registration Statement and the Prospectus.
(xiii) To the best of such counsel's knowledge, there are no
material contracts, indentures or other documents of a character
required to be described or referred to in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto.
Such counsel also shall state that it has no reason to believe that at
its effective date the Registration Statement 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 Prospectus on the Closing Date
includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading (other than
the financial and statistical information contained therein as to which
such counsel need express no opinion);
(d) Reserved;
(e) You shall have received copies of any opinions of counsel for
the Company that the Company is required to deliver to the Rating
Agency. Any such opinions shall be dated the Closing Date and addressed
to the Underwriter or accompanied by reliance letters addressed to the
Underwriter.
(f) You shall have received from Xxxxx & Xxxx LLP, counsel for the
Underwriter, such opinion or opinions, dated the Closing Date, in form
and substance satisfactory to you, with respect to the organization of
the Company, the validity of the Certificates, the Registration
Statement, the Prospectus and other related matters as you may require,
and the Company shall have furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass
upon such matters.
(g) You shall have received from Xxxxx & Wood LLP, special tax
counsel for the Company, dated the Closing Date, to the effect that:
(i) The statements in the Prospectus under the headings
"Federal Income Tax Consequences" and "ERISA
Considerations" and the summaries thereof under the headings
"Summary of the Prospectus--Tax Status of REMIC Certificates," "Tax
Status of Non-REMIC Certificates," and "--ERISA Considerations,"
and the statements in the Prospectus Supplement under the headings
"Federal Income Tax Consequence" and the summary thereof under the
heading "Summary of Terms--Certain Federal Income Tax Conse-
quences," to the extent they constitute matters of Federal law or
legal conclusions with respect thereto, have been reviewed by such
counsel and are correct in all material respects; and
(ii) The Trust described in the Prospectus Supplement and the
Pooling Agreement will qualify as a "real estate investment
conduit" ("REMIC") within the meaning of Section 860D of the
Internal Revenue Code of 1986, as amended (the "Code"), assuming
(i) an election is made to treat the Trust as a REMIC, (ii)
compliance with the Pooling Agreement and (iii) compliance with
changes in the law, including any amendments to the Code or appli-
cable Treasury regulations thereunder.
(h) At the Closing Date you shall have received a certificate of
an executive officer of the Company, dated as of the Closing Date, to
the effect that the representations and warranties contained in Section
2 are true and correct with the same force and effect as though made on
and as of the Closing Date.
(i) You shall have received from ( ), independent
public accountants, two letters, the first delivered the day of but
prior to the execution of, and dated the date of, this Agreement and the
other dated the Closing Date, addressed to the Underwriter, in the form
heretofore agreed (and in the case of the second such letter consistent
with the first such letter) with such variations as are reasonably
acceptable to you.
(j) You shall have received an opinion of _______________________,
counsel to the Trustee, dated the Closing Date, in form and substance
satisfactory to you and your counsel, to the effect that:
(i) the Trustee has been duly incorporated and is validly
existing as a ______________ under the laws of the
_________________ and has the power and authority to enter into and
to perform all actions required of it under the Pooling Agreement;
(ii) the Pooling Agreement has been duly authorized, executed
and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the Trustee
in accordance with its terms, except as such enforceability may be
limited by (A) bankruptcy, insolvency, liquidation, reorganization,
moratorium, conservatorship, receivership or other similar laws now
or hereafter in effect relating to the enforcement of creditors'
rights in general, and (B) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in
equity or at law) as well as concepts of reasonableness, good faith
and fair dealing;
(iii) the Certificates have been duly authenticated and
delivered by the Trustee;
(iv) the execution and delivery of the Pooling Agreement by
the Trustee and the performance by the Trustee of the terms thereof
do not conflict with or result in a violation of (A) any law or
regulation of the United States of America or the State of
___________ governing the banking or trust powers of the Trustee,
or (B) the certificate of incorporation or articles of association
or by-laws of the Trustee; and
(v) no approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or
the State of ___________ having jurisdiction over the banking or
trust powers of the Trustee is required in connection with the
execution and delivery by the Trustee of the Pooling Agreement or
the performance by the Trustee thereunder.
(k) Each Class of Offered Certificates shall have been rated not
less than "( )" and "( )" by ( ) and (
), respectively, (each a "Rating Agency") and such ratings shall not
have been rescinded.
(l) At the Closing Date counsel for the Underwriter shall have
been furnished with such other documents and opinions as they may
reasonably require.
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 Underwriter by notice to the Company 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 Section 7.
SECTION 7. Payment of Expenses.
------------------- The Company will pay all costs,
expenses, fees and taxes incident to (i) the preparation by the Company,
including, printing, filing and distribution under the Act of the
Registration Statement (including financial statements and exhibits), of the
Prospectus, each Preliminary Prospectus and all amendments and supplements to
any of them prior to or during the period specified in Section 5(b), (ii) the
preparation, printing (including word processing and duplication costs) and
delivery of this Agreement, the Pooling Agreement, Preliminary and
Supplemental Blue Sky Memoranda and all other agreements, memoranda,
correspondence and other documents printed and delivered in connection with
the offering of the Offered Certificates, (iii) the registration with the
Commission, and the issuance by the Company of the Offered Certificates, (iv)
the registration or qualification of the Offered Certificates for offer and
sale under the securities or Blue Sky laws of the several states as described
in Section 5(d) (including the reasonable fees and disbursements of your
counsel relating to such registration or qualification), (v) the fees and
expenses of the Rating Agencies, (vi) filings and clearance with the National
Association of Securities Dealers, Inc. in connection with the offering, if
applicable, and (vii) the performance by the Company of its other obligations
under this Agreement.
If this Agreement is terminated by you in accordance with the
provisions of Section 6 or Section 10, the Company shall reimburse you for
all of your out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriter.
SECTION 8. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities,
judgments and expenses whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading or arising
out of any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus or the Prospectus or the
omission or alleged omission to state therein a material fact necessary
to make the statements therein, in light of the circumstances in which
they were made, not misleading, except insofar as such losses, claims,
damages, liabilities, judgments or expenses are caused by any such
untrue statement or omission or alleged untrue statement or omission
based upon information furnished in writing to the Company by the
Underwriter expressly for use therein. This indemnity agreement will be
in addition to any liability which the Company may otherwise have to the
persons referred to above in this Section 8(a).
(b) The Underwriter agrees to indemnify and hold harmless the
Company, the directors of the Company, the officers of the Company who
sign the Registration Statement and each person, if any, who controls
the Company within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act from and against any and all losses,
claims, damages, liabilities, judgments and expenses whatsoever, as
incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus or the Prospectus or the omission or the alleged omission to
state therein a material fact necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading,
but in each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company
by the Underwriter expressly for use in the Registration Statement, the
Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto. This indemnity agreement will be in addition to any liability
which the Underwriter may have to the persons referred to above in this
Section 8(b).
(c) In case any action or proceeding (including any governmental
or regulatory investigation or proceeding) shall be instituted involving
any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs or Section 8(h), such person
(hereinafter called the indemnified party) shall promptly notify the
person against whom such indemnity may be sought (hereinafter called the
indemnifying party) in writing and the indemnifying party, upon request
of the indemnified party, shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying
party may designate and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such action or proceeding,
any indemnified party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the reasonable fees and expenses of more
than one separate firm (in addition to any local counsel) for the
Underwriter and all persons, if any, who control the Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act and (b) the reasonable fees and expenses of more than
one separate firm (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either
such Section and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the
Underwriter and such control persons of the Underwriter, such firm shall
be designated in writing by the Underwriter. In the case of any such
separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the
Company. The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 8(a), (b)
or (h) is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities, judgments or expenses referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities and expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriter on the other from the offering of the Offered
Certificates or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand and the
Underwriter on the other in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses,
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriter on
the other shall be deemed to be in such proportions that the Underwriter
is responsible for its pro rata portion of such losses, liabilities,
claims, damages and expenses determined in accordance with the ratio
that the excess of the aggregate resale price received by the
Underwriter for the Offered Certificates over the purchase price paid to
the Company by the Underwriter (before deducting expenses) bears to the
aggregate resale price received by the Underwriter for the Offered
Certificates, and the Company shall be responsible for the balance. The
relative fault of the Company on the one hand and the Underwriter on the
other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Company, on the one hand, or by the Underwriter, on the other hand, and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to Section 8(d) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages,
liabilities, judgments or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
Section 8(d), in no event shall the Underwriter be required to
contribute any amount in excess of the amount by which the total
underwriting commission received by such Underwriter for the sale of the
Offered Certificates underwritten by such Underwriter and distributed to
the public exceeds the amount of any damages which the Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
((f) The Underwriter confirms that the information set forth (i) in
the last paragraph on the cover page and (ii) in the second paragraph
under the caption "Method of Distribution" in the Prospectus Supplement
is correct and constitutes the only information furnished in writing to
the Company by or on behalf of the Underwriter specifically for
inclusion in the Registration Statement and the Prospectus.)
(g) The Underwriter agrees to provide the Company (i) all
Collateral Term Sheets, immediately upon distribution to any potential
investor and (ii) any other Derived Information no later than two
Business Days prior to which the Prospectus Supplement is required to be
filed pursuant to Rule 424. For purposes of this Agreement, the term
"Derived Information" means such portion, if any, of the information
delivered to the Company by the Underwriter pursuant to this Section for
filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into
account information incorporated therein by reference;
(ii) does not constitute Seller-Provided Information; and
(iii) is of the type of information defined as Collateral Term
Sheets, Structural Term Sheets or Computational Materials (as such
terms are interpreted in the No-Action Letters (as defined below)).
"Seller-Provided Information" means the information contained on
any computer tape furnished to the Underwriter by the Company concerning
the assets comprising the Trust.
The terms "Collateral Term Sheet" and "Structural Term Sheet" shall
have the respective meanings assigned to them in the February 13, 1995
letter (the "PSA Letter") of Cleary, Gottlieb, Xxxxx & Xxxxxxxx on
behalf of the Public Securities Association (which letter, and the SEC
staff's response thereto, were publicly available February 17, 1995).
The term "Collateral Term Sheet" as used herein includes any subsequent
Collateral Term Sheet that reflects a substantive change in the
information presented. The term "Computational Materials" has the
meaning assigned to it in the May 17, 1994 letter (the "Xxxxxx Letter"
and together with the PSA Letter, the "No-Action Letters") of Xxxxx &
Wood on behalf of Xxxxxx, Xxxxxxx & Co., Inc. (which letter, and the SEC
staff's response thereto, were publicly available May 20, 1994).
(h) The Underwriter agrees, assuming all Seller-Provided
Information (as defined below) is accurate and complete in all material
respects, to indemnify and hold harmless the Company, each of the
Company's officers and directors and each person who controls the
Company within the meaning of Section 15 of the Act against any and all
losses, claims, damages or liabilities, joint or several, to which they
may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement of a material fact contained
in the Derived Information provided by the Underwriter, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred by such entity
or person in connection with investigating or defending or preparing to
defend any such loss, claim, damage, liability or action as such
expenses are incurred. The obligations of the Underwriter under this
Section 8(h) shall be in addition to any liability which the Underwriter
may otherwise have. The procedures set forth in Section 8(c) shall be
equally applicable to this Section 8(h).
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
Company submitted hereto, including indemnity and contribution agreements,
shall remain operative and in full force and effect, regardless of any
termination of this Agreement, or any investigation made by or on behalf of
the Underwriter or any person controlling the Underwriter by or on behalf of
the Company, its officers or directors, and shall survive acceptance and
payment for the Offered Certificates hereunder.
SECTION 10. Effectiveness of Agreement and
------------------------------
Termination.
----------- This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
This Agreement may be terminated for any reason at any time prior
to the Closing Date by the Underwriter upon the giving of written notice of
such termination to the Company, if prior to the Closing Date (i) there has
been, since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition,
financial or otherwise, earnings, business affairs or business prospects of
the Company, whether or not arising in the ordinary course of business, or
(ii) there has occurred any outbreak or escalation of hostilities or other
calamity or crisis or material change in existing financial, political,
economic or securities market conditions, the effect of which is such as to
make it, in the judgment of the Underwriter, impracticable or inadvisable to
market the Offered Certificates in the manner contemplated in the Prospectus
or enforce contracts for the sale of the Offered Certificates, or (iii)
trading generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required,
by either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by
either Federal, New York State or New York City authorities. In the event of
any such termination, the provisions of Section 7, the indemnity agreement
and contribution provisions set forth in Section 8, and the provisions of
Sections 9 and 13 shall remain in effect.
( SECTION 11. Default.
------- If, on the Closing Date any one or more of
the Underwriters shall fail or refuse to purchase Offered Certificates that
it or they have agreed to purchase hereunder on such date, and the aggregate
principal amount of Offered Certificates which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Offered Certificates to be
purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the principal amount of Offered Certificates set
forth opposite their respective names in Schedule I bears to the aggregate
principal amount of Offered Certificates set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Offered Certificates which such defaulting Under-
writer or Underwriters agreed but failed or refused to purchase on such date;
provided
-------- that in no event shall the principal amount of Offered Certificates
that any Underwriter has agreed to purchase pursuant to Section 3 be increased
pursuant to this Section 11 by an amount in excess of one-ninth of such
principal amount of Offered Certificates without the written consent of such
Underwriter. If, on the Closing Date any Underwriter or Underwriters shall
fail or refuse to purchase Offered Certificates and the aggregate principal
amount of Offered Certificates and the aggregate principal amount of Offered
Certificates with respect to which such default occurs is more than one-tenth
of the aggregate principal amount of Offered Certificates to be purchased on
such date, and arrangements satisfactory to you and the Company for the
purchase of such Offered Certificates are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either
you or the Company shall have the right to postpone the Closing Date but
in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.)
SECTION 12. Notices.
------- All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Underwriter directed to ( ); notices to the Company shall be directed
to it at The Provident Bank, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000,
attention: ( ).
SECTION 13. Parties.
------- This Agreement shall inure to the benefit of
and be binding upon the Seller and the Company, the Underwriter, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Offered Certificates from the
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. Governing Law.
------------- This Agreement shall be governed by the
laws of the State of New York.
SECTION 15. Counterparts.
------------ This Agreement may be signed in two or
more counterparts each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign this Agreement and return it to us.
Very truly yours,
THE PROVIDENT BANK
By ________________________________
Name:
Title:
Confirmed and Accepted, as of
the date first above written:
(UNDERWRITER)
By
-------------------------
SCHEDULE I
Offered Certificates: Mortgage Pass Through Certificates, Series
-------------------- 1997-1, Class A-1, Class X and Class M-1.
Initial Principal Amount of Offered Certificates:
------------------------------------------------
Initial Class Certificate
Class Balance
------------------ ---------------------------
Class A-1 $
Class X $
Class M-1 $
Purchase Price:
--------------
Class Purchase Price
------ --------------
Class A-1 %*
Class X %*
Class M-1 %*
_______________________
*Plus accrued interest
at the applicable Certificate
Rate from the Cut-off Date to,
but not including, the Closing
Date.
Classes of Book-Entry Certificates:
----------------------------------
Description of Mortgage Loans:
----------------------------- Fixed rate, conventional first loans
having an aggregate principal balance as
of the Cut-Off Date of approximately
$_____________. The Mortgage Loans are
fully-amortizing, ___ to ___ month, fixed
interest rate, conventional mortgage loans
secured by one-to four-family residential
properties.
Denominations:
------------- The Offered Certificates will be issued in
book-entry form. Each such Class of
Certificates will be evidenced by one or
more certificates registered in the name
of CEDE & Co. ("CEDE") in the aggregate
amount equal to the Initial Class Certifi-
cate Balance of such Class. Interests in
such Classes of Offered Certificates
issued in the name of CEDE may be pur-
chased by investors in minimum
denominations of $( ) and integral
multiples of $( ).
Cut-Off Date: (__________)
------------
Certificate Rate:
----------------
Class Rate
--------------- -------------------------
Class A-1 % per annum
Class X % per annum
Class M-1 % per annum
