NATIONSLINK FUNDING CORPORATION
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 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, INC.
[NAMES OF ADDITIONAL REPRESENTATIVES]
By: NATIONSBANC XXXXXXXXXX SECURITIES, INC.
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, Inc.
[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
----- ------ ----- ------
Closing Time, Date and Location:
10:00 A.M. on ___________, 199_ at the offices of _______
______________________________.
SCHEDULE II
Principal Purchase
Underwriter Class Amount Price
----------- ----- ------ -----
