EXHIBIT 1.1
SUNTRUST REAL ESTATE TRUST, LLC
$[-------------]
(Approximate)
Mortgage Pass-Through Certificates,
Series[________]
[____ __], 20[__]
UNDERWRITING AGREEMENT
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
[other Underwriters]
Ladies and Gentlemen:
SECTION 1. Introductory. SunTrust Real Estate Trust, LLC, a Delaware
limited liability company (the "Company"), proposes to sell to SunTrust
Xxxxxxxx Xxxxxxxx, Inc.[other Underwriters] (collectively, the "Underwriters"),
approximately $[___________] aggregate Class Certificate Balance of its Mortgage
Pass-Through Certificates identified in Schedule I hereto (the "Offered
Certificates") having the Initial Class Certificate Balances set forth in
Schedule I (subject to an upward or downward variance, not to exceed 5%, of the
precise Initial Class Certificate Balance or notional amount within such range
to be determined by the Company in its sole discretion). The Offered
Certificates, together with [______] classes of subordinate certificates (the
"Non-Offered Certificates") are collectively referred to herein as the
"Certificates" and evidence the entire ownership interest in the assets of a
trust estate (the "Trust Estate") consisting primarily of a pool of [fixed] [and
adjustable] interest rate mortgage loans having original terms to maturity of
not more than [___] months, as described in Schedule I (the "Mortgage Loans") to
be acquired by the Company pursuant to a mortgage loan purchase agreement (the
"Mortgage Loan Purchase Agreement"), to be dated [_____________], 20[__],
between the Company and [____________________]. As of the close of business on
the date specified in Schedule I as the cut-off date (the "Cut-off Date"), the
Mortgage Loans will have the aggregate principal balance set forth in Schedule
I. This Underwriting Agreement shall hereinafter be referred to as the
"Agreement." An election will be made to treat certain of the assets of the
Trust Estate as a real estate mortgage investment conduit (a "REMIC"). The
Certificates are to be issued pursuant to a pooling and servicing agreement, to
be dated [__________ __], 20[__] (the "Pooling and Servicing Agreement"), among
the Company, as depositor, [______________], as master servicer (the "Master
Servicer") and as securities administrator (the "Securities Administrator"), and
[______________], as trustee (the "Trustee"). The Offered Certificates will be
issued in the denominations specified in Schedule I. The Pooling and Servicing
Agreement, this Agreement, the Mortgage Loan Purchase Agreement and the purchase
agreement, dated [__________ __], 20[__], among [SunTrust Xxxxxxxx Xxxxxxxx
Funding, LLC][OTHER SPONSOR] as Initial Purchaser and the Company (the "Purchase
Agreement") are collectively referred to herein as the "Basic Documents."
Capitalized terms used herein that are not otherwise defined herein have
the meanings assigned thereto in the Pooling and Servicing Agreement.
SECTION 2. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriter[s] as follows:
(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 Offered Certificates. 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 Offered Certificates and the plan of
distribution thereof and has previously advised the Underwriter[s] of all
further information (financial and other) with respect to the Company 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 supplement to the Basic Prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424, is
hereinafter called the "Prospectus Supplement" and, collectively with the
Basic Prospectus, the "Final Prospectus." Any reference herein to the
Registration Statement, the Basic 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 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 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 or the Final Prospectus, as the case may be, and deemed to
be incorporated therein by reference.
(b) At or prior to the filing dates set forth in Schedule II hereto
(the "Relevant Dates"), the Company prepared the information (collectively,
the "Disclosure Package") listed in Schedule II hereto. If, subsequent to
the date of this Agreement, the Company or the Underwriter[s] has [have]
determined that such information included an untrue statement of material
fact or omitted 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 and have terminated their old purchase contracts and
entered into new purchase contracts with purchasers of the Offered
Certificates, then "Disclosure Package" will refer to the information
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available to purchasers at the time of entry into the first such new
purchase contract, including any information that corrects such material
misstatements or omissions ("Corrective Information").
(c) 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, (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 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 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 the Underwriter[s] specifically for use in connection
with the preparation of the Registration Statement or the Final Prospectus.
(d) Each item in the Disclosure Package, at the related Relevant Date
did not, and at the Closing Date will not, contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that the Company makes no
representation and warranty with respect to the information contained in or
omitted from the Disclosure Package 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 the Underwriter[s] specifically
for use in connection with the preparation of the Disclosure Package.
(e) 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 other Basic Documents to which it is a party.
(f) 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
or the initiation of any proceedings for that purpose by the Commission.
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(g) This Agreement has been duly authorized, executed and delivered by
the Company, and each of the other Basic Documents to which the Company is
a party, 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), and except as
rights to indemnity and contribution hereunder may be limited by federal or
state securities laws or principles of public policy.
(h) The Company is not, and on the date on which the first bona fide
offer of the Offered Certificates is made will not be, an "ineligible
issuer," as defined in Rule 405 under the Act.
(i) On the Closing Date, the Basic Documents will conform to the
description thereof contained in the Registration Statement, the Final
Prospectus and the Disclosure Package; the Offered Certificates will have
been duly and validly authorized and, when such Offered Certificates are
duly and validly executed, issued and delivered in accordance with the
Pooling and Servicing Agreement, and sold to the Underwriter[s] as provided
herein, will be validly issued and outstanding and entitled to the benefits
of the Pooling and Servicing Agreement.
(j) As of the Closing Date, the representations and warranties of the
Company set forth in the Pooling and Servicing Agreement will be true and
correct.
(k) Neither the execution and delivery by the Company of this
Agreement or any other of the Basic Documents nor the consummation by the
Company of the transactions contemplated herein or therein, nor the
issuance of the Offered Certificates or the public offering thereof as
contemplated in the Final Prospectus or the Disclosure Package will
conflict in any material respect with or result in a material breach of, or
constitute a material default (with notice or passage of time or both)
under, or result in the imposition of any lien, pledge, charge, of the
property or assets of the Company (except as required or permitted pursuant
thereto or hereto), pursuant to any material mortgage, indenture, loan
agreement, contract or other instrument to which the Company is party or by
which it is bound, nor will such action result in any violation of any
provisions of any applicable law, administrative regulation or
administrative or court decree, the certificate of incorporation or by-laws
of the Company. The Company is not in violation of its certificate of
incorporation, in default in any material respect in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease, trust agreement, transfer and servicing agreement or other
instrument to which a party or by which it may be bound, or to which any
material portion of its property or assets is subject.
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(l) No legal or governmental proceedings are pending to which the
Company is a party or of which any property of the Company is subject,
which if determined adversely to the Company would, individually or in the
aggregate, have a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company; and to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(m) Since the date of which information is given in the Registration
Statement, there has not been any material adverse change in the business
or net worth of the Company.
(n) Any taxes, fees and other governmental charges in connection with
the execution and delivery of the Basic Documents and the execution,
delivery and sale of the Offered Certificates have been or will be paid at
or prior to the Closing Date.
(o) No consent, approval, authorization or order of, or registration,
filing or declaration with, any court or governmental agency or body is
required, or will be required, in connection with (i) the execution and
delivery by the Company of any Basic Document or the performance by the
Company of any or (ii) the offer, sale or delivery of the Offered
Certificates except such as shall have been obtained or made, as the case
may be, or will be obtained or made, as the case may be, prior to the
Closing Date, or will not materially adversely affect the ability of the
Company to perform its obligations under any Basic Document.
(p) The Company possesses, and will possess, 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 Issuer Free Writing
Prospectus (as defined herein), if any, Final Prospectus and the Disclosure
Package, except to the extent that the failure to have such licenses,
certificates, authorities or permits does not have a material adverse
effect on the Offered Certificates or the financial condition of the
Company, and the Company has not received, nor will have received as of
each Closing Date, any 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) On the Closing Date, (i) the Company will have good and marketable
title to the related Mortgage Loans being transferred by it to [________]
(the "Trust") pursuant thereto, free and clear of any lien, (ii) the
Company will not have assigned to any person any of its right, title or
interest in such Mortgage Loans or in the Pooling and Servicing Agreement,
and (iii) the Company will have the power and authority to sell such
Mortgage Loans to the Trust, and upon execution and delivery of the Pooling
and Servicing Agreement by the Company, the Master Servicer and the
Securities Administrator, the Trust will have good and marketable title
thereto, in each case free of liens.
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(r) The properties and businesses of the Company conform, and will
conform, in all material respects, to the descriptions thereof contained in
the Final Prospectus and the Disclosure Package.
(s) The Company is not, and, after giving effect to the transactions
contemplated by the Pooling and Servicing Agreement and the offering and
sale of the Offered Certificates, neither the Company nor the Trust Fund
will be, an "investment company," as defined in the Investment Company Act
of 1940, as amended.
(t) It is not necessary in connection with the offer, sale and
delivery of the Offered Certificates in the manner contemplated by this
Agreement to qualify the Pooling and Servicing Agreement under the Trust
Indenture Act of 1939, as amended (the "1939 Act").
(u) Other than the Final Prospectus, the Company (including its agents
and representatives other than the Underwriter[s]) has not made, used,
prepared, authorized, approved or referred to and will not make, use,
prepare, authorize, approve or refer to any "written communication" (as
defined in Rule 405 under the Act) that constitutes an offer to sell or
solicitation of an offer to buy the Offered Certificates other than (i)
information included in the Disclosure Package, (ii) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Act or
Rule 134 under the Act or (iii) other written communication approved in
writing in advance by the Underwriter[s].
(v) Any Issuer Free Writing Prospectus complied in all material
respects with the Act and has been, or will be filed in accordance with
Rule 433 under the Act (to the extent required thereby).
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
issue and sell to the Underwriter[s], and the Underwriter[s] agree[s] to
purchase from the Company, the principal amount of Offered Certificates at a
purchase price set forth in Schedule I hereto.
The Company will deliver the Offered Certificates to the Underwriter[s],
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 be agreed upon by the Company and the Underwriter[s], at the offices of
Hunton & Xxxxxxxx LLP, Charlotte, North Carolina at [________], Eastern time, on
[__________ __], 20[__] or at such other place or time not later than seven full
business days thereafter as the Underwriter[s] 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 the Underwriter[s] request[s] two full business
days prior to the Closing Date and will be made available at the office of
SunTrust Xxxxxxxx Xxxxxxxx, Inc, [Atlanta, Georgia] [other Underwriters], [city,
state]or, upon the Underwriter's request, through the facilities of The
Depository Trust Company.
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SECTION 4. Offering by the Underwriter[s].
(a) It is understood that the Underwriter[s] propose[s] to offer the
Offered Certificates subject to this Agreement for sale to the public
(which may include selected dealers) on the terms as set forth in the Final
Prospectus.
(b) The Underwriter[s] represent[s] and warrant[s] to, and agrees
with, the Company, that:
In relation to each Member State of the European Economic Area which
has implemented the Prospectus Directive (each, a "Relevant Member State"),
it has not made and will not make an offer of Certificates to the public in
that Relevant Member State prior to the publication of a prospectus in
relation to the Offered Certificates which has been approved by the
competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the
Prospectus Directive, except that it may, with effect from and including
the relevant implementation date, make an offer of Certificates to the
public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average
of at least 250 employees during the last financial year; (2) a total
balance sheet of more than (euro)43,000,000 and (3) an annual net
turnover of more than (euro)50,000,000, as shown in its last annual or
consolidated accounts; or
(iii) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of this representation, the expression an "offer of
Certificates to the public" in relation to any Offered Certificates in any
Relevant Member State means the communication in any form and by any means
of sufficient information on the terms of the offer and the Certificates to
be offered so as to enable an investor to decide to purchase or subscribe
the Certificates, as the same may be varied in that Member State by any
measure implementing the Prospectus Directive in that Member State and the
expression "Prospectus Directive" means the European Commission Directive
2003/71/EC and includes any relevant implementing measure in each Relevant
Member State.
It has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the
United Kingdom Financial Services and Markets Act 2000 (the "FSMA"))
received by it in connection with the issue or sale of the Certificates in
circumstances in which Section 21(1) of the FSMA does not apply to the
issuer.
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It has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Offered
Certificates in, from or otherwise involving the United Kingdom.
SECTION 5. Covenants of the Company. The Company hereby covenants and
agrees with the Underwriter[s] that:
(a) Prior to the termination of the offering of the Offered
Certificates, 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 Underwriter[s] a copy for
its review prior to filing and will not file any such proposed amendment or
supplement to which the Underwriter[s] reasonably object[s]. Subject to the
foregoing sentence, the Company will cause the Final Prospectus to be filed
with the Commission pursuant to Rule 424. The Company will advise the
Underwriter[s] promptly (i) when the Final Prospectus shall have been filed
with the Commission pursuant to Rule 424, (ii) when any amendment to the
Registration Statement relating to the Offered Certificates 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, (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 Offered
Certificates 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 and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Certificates 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.
(c) The Company will furnish to the Underwriter[s] and counsel for the
Underwriter[s], 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 by the Underwriter[s] or dealers may be required
by the Act, as many copies of the Final Prospectus and any amendments
thereof and supplements thereto as the Underwriter[s] may reasonably
request. The Company will pay the expenses of printing all documents
8
relating to the initial offering, provided that any additional expenses
incurred in connection with the requirement of delivery of a market-making
prospectus, if applicable, will be borne by the Underwriter[s].
(d) The Company will furnish such information as may be required and
otherwise cooperate in qualifying the Offered Certificates for sale under
the laws of such jurisdictions as the Underwriter[s] may reasonably
designate and to maintain such qualifications in effect so long as 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 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.
SECTION 6. Conditions to the Obligations of the Underwriter[s]. The
obligations of the Underwriter[s] to purchase the Offered Certificates 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) The Underwriter[s] shall have received from [_________________]
(i) a letter, dated the date hereof, confirming that they are independent
public accountants within the meaning of the Act and the rules and
regulations of the Commission promulgated thereunder and otherwise in form
and substance reasonably satisfactory to the Underwriter[s] and counsel to
the Underwriter[s] and (ii) if requested by the Underwriter[s], a letter
dated the Closing Date, updating the letter referred to in clause (i)
above, in form and substance reasonably satisfactory to the Underwriter[s]
and counsel for the Underwriter[s].
(b) All actions required to be taken and all filings required to be
made by the Company under the Act prior to the sale of the Offered
Certificates shall have been duly taken and made. At and 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
the Underwriter[s], shall have been contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties
of the Company, the Servicer or the Master Servicer which, in the
reasonable judgment of the Underwriter[s], materially impairs the
investment quality of the Offered Certificates; (ii) any downgrading in the
rating of the Servicer or the Master Servicer by any "nationally recognized
statistical rating organization" (as such term is defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of the Servicer or
the Master Servicer (other than an announcement with positive implications
9
of a possible upgrading, and no implication of a possible downgrading, of
such rating); (iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange; (iv) any banking moratorium declared by
federal, North Carolina or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the reasonable judgment of the
Underwriter[s], the effects of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Offered Certificates.
(d) The Underwriter[s] shall have received a certificate dated the
Closing Date of an executive officer of the Company in which such officer
shall state that, to the best of such officer's knowledge after reasonable
inspection, (i) the representations and warranties of the Company contained
in the Basic Documents are true and correct with the same force and effect
as if made on the Closing Date and (ii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date.
(e) The Underwriter[s] shall have received an opinion of counsel
reasonably acceptable to the Master Servicer and the Securities
Administrator, dated the Closing Date, in form and substance satisfactory
to the Underwriter[s] and its [their] counsel.
(f) The Underwriter[s] shall have received an opinion of Hunton &
Xxxxxxxx LLP, special counsel to the Company and [sponsor], dated the
Closing Date, in form and substance satisfactory to the Underwriter[s] and
its [their] counsel.
(g) The Underwriter[s] shall have received copies of any opinions of
counsel for the Company that the Company is required to deliver to any
Rating Agency. Any such opinions shall be dated the Closing Date and
addressed to the Underwriter[s] or accompanied by reliance letters
addressed to the Underwriter[s].
(h) The Underwriter[s] shall have received from Hunton & Xxxxxxxx LLP,
special counsel for the Underwriter[s], a letter dated the Closing Date
with respect to the Final Prospectus, substantially to the effect that
nothing has come to such counsel's attention in the course of its review of
the Final Prospectus which causes it to believe that the Final Prospectus,
as of the date of the Prospectus Supplement or the Closing Date, contained
any 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,
in the light of the circumstances under which they were made, not
misleading; it being understood that such counsel need not express any view
as to any information incorporated by reference in the Final Prospectus or
as to the adequacy or accuracy of the financial, numerical, statistical or
quantitative information included in the Final Prospectus.
(i) On or before the Closing Date, the Underwriter[s] shall have
received evidence satisfactory to it that each class of Offered
Certificates has been given the ratings set forth on Schedule I hereto.
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(j) At the Closing Date, the Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the
descriptions thereof contained in the Final Prospectus.
(k) The Underwriter[s] shall not have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement or
the Final 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 counsel to the Underwriter[s], is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(l) All corporate proceedings and other legal matters relating to the
authorization, form and validity of this Agreement, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreement, the
Certificates, the Registration Statement and the Final Prospectus, and all
other legal matters relating to this Agreement and the transactions
contemplated hereby, shall be reasonably satisfactory in all respects to
counsel for the Underwriter[s], and the Company shall have furnished to
such counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
(m) The Underwriter[s] shall have received a certificate (upon which
Hunton & Xxxxxxxx LLP shall be entitled to rely in rendering its opinions
and letters under the Basic Documents) dated the Closing Date of an officer
of the Custodian in which such officer shall state that, to the best of
such officer's knowledge after reasonable investigation: (i) the Custodian
is not an affiliate of any other entity listed as a transaction party in
the Prospectus Supplement; (ii) the information in the Prospectus
Supplement related to the Custodian (the "Custodian Disclosure") includes
(a) the Custodian's correct name and form of organization and (b) a
discussion of the Custodian's procedures for safekeeping and preservation
of the Mortgage Loans; and (iii) the Custodian Disclosure is true and
correct in all material respects and nothing has come to his or her
attention that that would lead such officer to believe that the Custodian
Disclosure contains any untrue statement of material fact or omits to state
a material fact necessary to make the statements therein not misleading.
(n) The Underwriter[s] shall have received a certificate (upon which
Hunton & Xxxxxxxx LLP shall be entitled to rely in rendering its opinions
and letters under the Basic Documents) dated the Closing Date of an officer
of the Trustee in which such officer shall state that, to the best of such
officer's knowledge after reasonable investigation: (i) the Trustee is not
an affiliate of any other entity listed as a transaction party in the
Prospectus Supplement (ii) the information in the Prospectus Supplement
related to the Trustee (the "Trustee Disclosure") includes (a) the
Trustee's correct name and form of organization and (b) a discussion of the
Trustee's experience serving as trustee for asset-backed securities
transactions involving mortgage loans; and (iii) the Trustee Disclosure is
true and correct in all material respects and nothing has come to his or
her attention that that would lead such officer to believe that the Trustee
Disclosure contains any untrue statement of material fact or omits to state
a material fact necessary to make the statements therein not misleading.
11
(o) The Underwriter[s] shall have received a certificate (upon which
Hunton & Xxxxxxxx LLP shall be entitled to rely in rendering its opinions
and letters under the Basic Documents) dated the Closing Date of an officer
of [____________] (the "Significant Originator") in which such officer
shall state that, to the best of such officer's knowledge after reasonable
investigation: (i) such Significant Originator is not an affiliate of any
other entity listed as a transaction party in the Prospectus Supplement;
(ii) the information in the Prospectus Supplement related to such
Significant Originator (the "Originator Disclosure") includes such
Significant Originator's correct name, form of organization and length of
time originating mortgage loans; (iii) the description of such Significant
Originator's origination program includes (a) experience in originating
mortgage loans, (b) size and composition of such Significant Originator's
origination portfolio, and (c) such Significant Originator's
credit-granting or underwriting criteria for the mortgage loans; (iv)
except as set forth in the Originator Disclosure, no additional information
regarding such Significant Originator's origination program could have a
material adverse affect in the performance of the pool assets or the
Offered Certificates; and (v) such Originator Disclosure is true and
correct in all material respects and nothing has come to his or her
attention that that would lead such officer to believe that the Originator
Disclosure contains any untrue statement of material fact or omits to state
a material fact necessary to make the statements therein not misleading.
The requirement to provide a certificate pursuant to the preceding sentence
shall be deemed satisfied if such Significant Originator represents and
warrants that the Originator Disclosure satisfies the relevant provisions
of Regulation AB under the Act.
(p) The Underwriter[s] shall have received a certificate (upon which
Hunton & Xxxxxxxx LLP shall be entitled to rely in rendering its opinions
and letters under the Basic Documents) dated the Closing Date of an officer
of [______________]. (the "Significant Servicer") and the Master Servicer
in which such officer shall state that, to the best of such officer's
knowledge after reasonable investigation: (i) such Significant Servicer or
Master Servicer is not an affiliate of any other entity listed as a
transaction party in the Prospectus Supplement; (ii) the information in the
Prospectus Supplement related to such Significant Servicer or Master
Servicer (the "Servicer Disclosure") includes (a) such Significant
Servicer's or Master Servicer's correct name and form of organization, (b)
the correct length of time that such Significant Servicer or Master
Servicer has been servicing mortgage loans; and (c) a discussion of such
Significant Servicer's or Master Servicer's experience in servicing
mortgage loans; (iii) except as set forth in the Servicer Disclosure, (a)
there are no other servicers responsible for calculating or making
distributions to the holders of the Offered Certificates, performing
work-outs or foreclosures, or any other material aspect of servicing the
mortgage loans, (b) there have been no material changes to such Significant
Servicer's or Master Servicer's servicing policies and procedures during
the last three years, (c) no additional information regarding such
Significant Servicer's or Master Servicer's financial condition could have
a material affect on performance of the Offered Certificates, (d) no
commingling of funds on deposit in collection accounts will be permitted by
such Significant Servicer or Master Servicer, (e) no additional information
with respect to any special or unique factors involved in servicing the
mortgage loans could have a material affect on performance of the Offered
Certificates, and (f) no additional information with respect to such
12
Significant Servicer's or Master Servicer's process for handling
delinquencies, losses, bankruptcies and recoveries could have a material
affect on performance of the Offered Certificates; (iv) for any Significant
Servicer or Master Servicer identified in the Prospectus Supplement as
responsible for calculating or making distributions to the holders of the
Offered Certificates, performing work-outs or foreclosures, or any other
material aspect of servicing the mortgage loans, the certifications in
clauses (ii) and (iii) above are made with respect to such Significant
Servicer or Master Servicer; and (v) the Servicer Disclosure is true and
correct in all material respects and nothing has come to his or her
attention that that would lead such officer to believe that the Servicer
Disclosure contains any untrue statement of material fact or omits to state
a material fact necessary to make the statements therein not misleading.
The requirement to provide a certificate pursuant to the preceding sentence
shall be deemed satisfied if such Significant Servicer or Master Servicer
represents and warrants that the Servicer Disclosure satisfies the relevant
provisions of Regulation AB under the Act.
The Company will provide or cause to be provided to the Underwriter[s] such
conformed copies of such opinions, certificates, letters and documents as the
Underwriter[s] may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter[s].
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[s] 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. Reimbursement of the Underwriter's Expenses. If the sale of the
Offered Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriter[s] 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 the Underwriter[s], the Company will
reimburse the Underwriter[s] upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
reasonably incurred by it in connection with the proposed purchase and sale of
the Offered Certificates.
SECTION 8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Underwriter[s] and any person who controls the Underwriter[s] 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 either
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 (1) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
for the registration of the Offered Certificates as originally filed or in
13
any amendment thereof, or in the Basic Prospectus or the Final Prospectus
or the Disclosure Package, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading, (2) any untrue statement or alleged untrue
statement of a material fact contained in any Issuer Free Writing
Prospectus or any Issuer Information (as defined in Section 11(e) and
Section 11(b), respectively) contained in any Free Writing Prospectus
prepared by or on behalf of the Underwriter[s] or in any Free Writing
Prospectus which is required to be filed pursuant to Section 11(e) or
Section 11(g), or the omission or alleged omission to state a material fact
required to make the statements therein, in light of the circumstances
under which they were made, not misleading, which was not corrected by
information subsequently supplied by the Depositor to the Underwriter[s] at
any time prior to the time of sale, and agrees to reimburse the
Underwriter[s] and any such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action and (3) any
static pool information prepared by the Company and incorporated by
reference into a Free Writing Prospectus in connection with the offering of
the Offered Certificates, to the extent not included above; 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 (A) therein in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of the Underwriter[s] specifically for use in connection with the
preparation thereof or (B) in any Current Report or any amendment or
supplement thereof, and (ii) such indemnity with respect to the Final
Prospectus shall not inure to the benefit of the Underwriter[s] (or any
person controlling the Underwriter[s]) from whom the person asserting any
such loss, claim, damage or liability purchased the Offered Certificates
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 Offered Certificates 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 was corrected
in the Final Prospectus (or the Final Prospectus as amended or
supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) The Underwriter[s] agree[s] 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 the Underwriter[s], but only with
reference to (A) written information relating to the Underwriter[s]
furnished to the Company by or on behalf of the Underwriter[s] specifically
for use in the preparation of the documents referred to in the foregoing
indemnity, or (B) any Free Writing Prospectus (as defined in Section 11(a))
prepared by or on behalf of the Underwriter[s], except that no such
indemnity shall be available for any losses, claims, damages, liabilities
or actions in respect thereof resulting from any error in any Issuer
Information (as defined in Section 11(b)) (an "Issuer Error") furnished by
14
the Company to the Underwriter[s] in writing or by electronic transmission
that was used in the preparation of any Free Writing Prospectus, other than
an Issuer Error as to which, prior to the time of the sale of the Offered
Certificates to the person asserting a claim, the Company notified the
Underwriter[s] in writing of the Issuer Error or provided in written or
electronic form information superseding or correcting such Issuer Error (in
any such case, a "Corrected Issuer Error"), and the Underwriter[s] failed
to notify such person thereof or to deliver such person corrected Free
Writing Prospectus. This indemnity agreement will be in addition to any
liability which the Underwriter[s] may otherwise have. The Company
acknowledges that the statements set forth in the Prospectus Supplement in
the first sentence of the last paragraph on the cover page, in the first
sentence under the subheading "Risk Factors--Limited Liquidity" and in the
second, third and fifth paragraphs under the heading "Method of
Distribution" constitute the only information furnished in writing by or on
behalf of the Underwriter[s] for inclusion in the documents referred to in
the foregoing indemnity (other than any Free Writing Prospectus furnished
to the Company by the Underwriter[s]).
(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 reasonably 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
Underwriter[s] in case of subparagraphs (a) or (c), representing the
indemnified parties under subparagraphs (a) or (c) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
reasonably 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
15
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 paragraphs (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 Underwriter[s] on the
grounds of policy or otherwise, the Company or the Underwriter[s] 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 or the Underwriter[s]
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
Free Writing Prospectus, in such proportion as is appropriate to
reflect the relative benefit received by each of the Company and the
Underwriter[s]; 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 Free
Writing Prospectus, in such proportion as is appropriate to reflect
the relative fault of the Company and the Underwriter[s] 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 Free Writing
Prospectus results from information prepared by the Company or the
Underwriter[s] 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 (e), 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 the Underwriter[s] within the meaning of either the Act or the Exchange
Act shall have the same rights to contribution as the Underwriter[s], and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, and 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 (e). 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 (e), 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 (e).
16
SECTION 9. Representations and Indemnities to Survive; No Fiduciary Duty.
The respective agreements, representations, warranties, indemnities and other
statements of the Company and its respective officers and of the Underwriter[s]
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 the
Underwriter[s] 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 Offered Certificates. The provisions of Sections 7 and 8 hereof
and this Section 9 shall survive the termination or cancellation of this
Agreement.
SECTION 10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
This Agreement shall be subject to termination in the absolute discretion
of the Underwriter[s], by notice given to the Company prior to delivery of and
payment for the Offered Certificates, 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 by federal 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 reasonable judgment of the
Underwriter[s], impracticable to market the Offered Certificates.
SECTION 11. Offering Communications; Free Writing Prospectuses.
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, the Underwriter[s] shall not
convey or deliver any written communication to any person in connection
with the initial offering of the Certificates, unless such written
communication (i) is made in reliance on Rule 134 under the Act, (ii)
constitutes a prospectus satisfying the requirements of Rule 430B under the
Act or (iii) constitutes a "free writing prospectus," as defined in Rule
405 under the Act (a "Free Writing Prospectus"). Without limitation
thereby, without the prior written consent of the Company (which consent
may be withheld for any reason), the Underwriter[s] shall not convey or
deliver in connection with the initial offering of the Certificates any
"ABS informational and computational material," as defined in Item 1101(a)
of Regulation AB under the Act ("ABS Informational and Computational
Material"), in reliance upon Rules 167 and 426 under the Act.
(b) (i) The Underwriter[s] shall deliver to the Company, no later than
two business days prior to the date of first use thereof, (A) any Free
Writing Prospectus prepared by or on behalf of the Underwriter[s] that
contain[s] any "issuer information," as defined in Rule 433(h) under the
Act ("Issuer Information"), and (B) any Free Writing Prospectus or portion
thereof that contains only a description of the final terms of the
Certificates.
(ii) Notwithstanding the provisions of Section 11(b)(i), any Free
Writing Prospectus described therein that contains only ABS
Informational and Computational Materials, may be delivered by the
Underwriter[s] to the Company not later than the later of (a) two
17
business days prior to the due date for filing of the Prospectus
pursuant to Rule 424(b) under the Act or (b) the date of first use of
such Free Writing Prospectus.
(c) The Underwriter[s] represent[s] and warrant[s] to the Company that
the Free Writing Prospectuses to be furnished to the Company by the
Underwriter[s] pursuant to Section 11(b)(i) or (ii) will constitute all
Free Writing Prospectuses of the type described therein that were furnished
to prospective investors by the Underwriter[s] in connection with its offer
and sale of the Certificates.
(d) The Underwriter[s] represent[s] and warrant[s] to the Company that
each Free Writing Prospectus required to be provided by it to the Company
pursuant to Section 11(b)(i) or (ii) did not, as of the date such Free
Writing Prospectus was conveyed or delivered to any prospective investor,
include any untrue statement of a material fact or omit any material fact
required to be stated therein necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading; provided however, that the Underwriter[s] make[s] no
representation to the extent such misstatements or omissions were the
result of any inaccurate Issuer Information supplied by the Company to the
Underwriter[s] which information was not corrected by information
subsequently supplied by the Company to the Underwriter[s] prior to the
sale to the investor of the Certificates which resulted in a loss, claim,
damage or liability arising out of or based upon such misstatement or
omission.
(e) The Company agrees to file with the Commission the following:
(i) Any Free Writing Prospectus that constitutes an "issuer free
writing prospectus," as defined in Rule 433(h) under the Act ("Issuer
Free Writing Prospectus");
(ii) Any Free Writing Prospectus or portion thereof delivered by
the Underwriter[s] to the Company pursuant to Section 11(b) hereof;
and
(iii) Any Free Writing Prospectus for which the Company or any
person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a person
unaffiliated with the Company or any other offering participant that
is in the business of publishing, radio or television broadcasting or
otherwise disseminating communications.
(f) Any Free Writing Prospectus required to be filed pursuant to
Section 11(e) by the Company may be filed with the Commission not later
than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be
filed that contains only the description of the final terms of the
Certificates may be filed by the Company within two days of the later
of the date such final terms have been established for all classes of
Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to
be filed that contains only ABS Informational and Computational
Material may be filed by the Company with the Commission not later
18
than the later of the due date for filing the Final Prospectus
relating to the Certificates pursuant to Rule 424(b) under the Act or
two business days after the first use of such Free Writing Prospectus;
(iii) any Free Writing Prospectus required to be filed pursuant
to Section 11(e)(3) may, if no payment has been made or consideration
has been given by or on behalf of the Company for the Free Writing
Prospectus or its dissemination, be filed by the Company with the
Commission not later than four business days after the Company becomes
aware of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer
Information contained in any Free Writing Prospectus of an offering
participant other than the Trust, if such information is included or
incorporated by reference in a prospectus or Free Writing Prospectus
previously filed with the Commission that relates to the offering of
the Certificates, or (B) any Free Writing Prospectus or portion
thereof that contains a description of the Certificates or the
offering of the Certificates which does reflect the final terms
thereof.
(g) The Underwriter[s] shall file with the Commission any Free Writing
Prospectus that is used or referred to by it and distributed by or on
behalf of the Underwriter[s] in a manner reasonably designed to lead to its
broad, unrestricted dissemination not later than the date of the first use
of such Free Writing Prospectus.
(h) Notwithstanding the provisions of Section 11(g), the
Underwriter[s] shall file with the Commission any Free Writing Prospectus
for which the Underwriter[s] or any person acting on its behalf provided,
authorized or approved information that is prepared and published or
disseminated by a person unaffiliated with the Company or any other
offering participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating written communications
and for which no payment was made or consideration given by or on behalf of
the Company or any other offering participant, not later than four business
days after the Underwriter[s] become[s] aware of the publication, radio or
television broadcast or other dissemination of the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 11(e) and 11(g),
neither the Company nor the Underwriter[s] shall be required to file any
Free Writing Prospectus that does not contain substantive changes from or
additions to a Free Writing Prospectus previously filed with the
Commission.
(j) The Company and the Underwriter[s] each [all] agree that any Free
Writing Prospectuses prepared by it shall contain the following legend:
The issuer has filed a registration statement
(including a prospectus) with the SEC for the offering
to which this communication relates. Before you invest,
you should read the prospectus in that registration
19
statement and other documents the issuer has filed with
the SEC for more complete information about the issuer
and this offering. You may get these documents for free
by visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the issuer, any underwriter or any
dealer participating in the offering will arrange to
send you the prospectus if you request it by calling
toll-free 1-8[XX-XXX-XXXX].
The securities may not be suitable for all investors.
[SunTrust Xxxxxxxx Xxxxxxxx, Inc.][other Underwriters]
and its affiliates may acquire, hold or sell positions
in these securities, or in related derivatives, and may
have an investment or commercial banking relationship
with the depositor.
The asset-backed securities referred to in these
materials, and the asset pools backing them, are
subject to modification or revision (including the
possibility that one or more classes of securities may
be split, combined or eliminated at any time prior to
issuance or availability of a final prospectus) and are
offered on a "when, as and if issued" basis. You
understand that, when you are considering the purchase
of these securities, a contract of sale will come into
being no sooner than the date on which the relevant
class has been priced and we have confirmed the
allocation of securities to be made to you; any
"indications of interest" expressed by you, and any
"soft circles" generated by us, will not create binding
contractual obligations for you or us.
Because the asset-backed securities are being offered
on a "when, as and if issued" basis, any such contract
of sale will terminate, by its terms, without any
further obligation or liability between us, if the
securities themselves, or the particular class to which
the contract relates, are not issued. Because the
asset-backed securities are subject to modification or
revision, any such contract also is conditioned upon
the understanding that no material change will occur
with respect to the relevant class of securities prior
to the closing date. If a material change does occur
with respect to such class, our contract will
terminate, by its terms, without any further obligation
or liability between us (the "Automatic Termination").
If an Automatic Termination occurs, we will provide you
with revised offering materials reflecting the material
change and give you an opportunity to purchase such
class. To indicate your interest in purchasing the
class, you must communicate to us your desire to do so
within such timeframe as may be designated in
connection with your receipt of the revised offering
materials.
20
The information contained in these materials may be
based on assumptions regarding market conditions and
other matters as reflected herein. [SunTrust Xxxxxxxx
Xxxxxxxx, Inc.][other Underwriters] (the
"Underwriter[s]") make[s] no representation regarding
the reasonableness of such assumptions or the
likelihood that any such assumptions will coincide with
actual market conditions or events, and these materials
should not be relied upon for such purposes. The
Underwriter[s] and its [their] affiliates, officers,
directors, partners and employees, including persons
involved in the preparation or issuance of these
materials, may, from time to time, have long or short
positions in, and buy and sell, the securities
mentioned herein or derivatives thereof (including
options). Information in these materials is current as
of the date appearing on the material only. Information
in these materials regarding any securities discussed
herein supersedes all prior information regarding such
securities. These materials are not to be construed as
an offer to sell or the solicitation of any offer to
buy any security in any jurisdiction where such an
offer or solicitation would be illegal.
This free writing prospectus is being delivered to you
solely to provide you with information about the
offering of the securities referred to in this free
writing prospectus and to solicit an offer to purchase
the securities, when, as and if issued. Any such offer
to purchase made by you will not be accepted and will
not constitute a contractual commitment by you to
purchase any of the securities until we have accepted
your offer to purchase securities. You may withdraw
your offer to purchase securities at any time prior to
our acceptance of your offer.
The information in this free writing prospectus
supersedes information contained in any prior similar
free writing prospectus relating to these securities
prior to the time of your commitment to purchase.
This free writing prospectus is not an offer to sell or
solicitation of an offer to buy these securities in any
state where such offer, solicitation or sale is not
permitted.
The Company and the Underwriter[s] each [all] agree that any Free Writing
Prospectus prepared by the Underwriter[s] and that is not an Issuer Free Writing
Prospectus or that does not contain Issuer Information shall also contain the
following legend:
Neither the issuer of the securities nor any of its
affiliates prepared, provided, approved or verified any
statistical or numerical information presented herein,
21
although that information may be based in part on loan
level data provided by the issuer or its affiliates.
(k) The Company and the Underwriter[s] agree to retain all Free
Writing Prospectuses that they have used and that are not required to be
filed pursuant to this Section 11 for a period of three years following the
initial bona fide offering of the Certificates.
(l) The Underwriter[s] covenant[s] with the Depositor that after the
final Prospectus is available the Underwriter[s] shall not distribute any
written information concerning the Offered Certificates to a prospective
purchaser of Offered Certificates unless such information is preceded or
accompanied by the final Prospectus.
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. Notice to the
Underwriter[s] shall be directed to SunTrust Xxxxxxxx Xxxxxxxx, Inc., 000
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 [other Underwriters][address],
Attention:[____________________]; and notices to the Company shall be directed
to it at SunTrust Real Estate Trust, LLC, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000, Attention:[_______________].
SECTION 13. Parties. This Agreement shall inure to the benefit of and be
binding upon the Company, the Underwriter[s], 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[s] shall be deemed to be a
successor by reason merely of such purchase.
SECTION 14. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (BUT WITH REFERENCE TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH BY ITS TERMS
APPLIES TO THIS AGREEMENT).
SECTION 15. No Advisory or Fiduciary Responsibility. The Company
acknowledges and agrees that: (i) the purchase and sale of the Offered
Certificates pursuant to this Agreement, including the determination of the
public offering price of the Offered Certificates and any related discounts and
commissions, is an arm's-length commercial transaction between the Company, on
the one hand, and the Underwriter[s] on the other hand, and the Company is
capable of evaluating and understanding and understands and accepts the terms,
risks and conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to
such transaction the Underwriter[s] is [are] and has [have] been acting solely
as a principal and is [are] not the agent[s] or fiduciary [fiduciaries] of the
Company or its affiliates, stockholders, creditors or employees or any other
22
party; (iii) the Underwriter[s] has [have] not assumed, nor will it assume, an
advisory or fiduciary responsibility in favor of the Company with respect to any
of the transactions contemplated hereby or the process leading thereto
(irrespective of whether the Underwriter[s] has [have] advised or is currently
advising the Company on other matters) or any other obligation to the Company
except the obligations expressly set forth in this Agreement; (iv) the
Underwriter[s] and its [their] affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company and
that the Underwriter[s] has [have] no obligation to disclose any of such
interests by virtue of any fiduciary or advisory relationship; and (v) the
Underwriter[s] has [have] not provided any legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and the Company has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it deemed appropriate.
The Company hereby waives and releases, to the fullest extent permitted by
law, any claims that the Company may have against the Underwriter[s] with
respect to any breach or alleged breach of fiduciary duty.
SECTION 16. Miscellaneous.
(a) This Agreement supersedes all prior or contemporaneous agreements
and understandings (whether written or oral) between the Company and the
Underwriter[s] with respect to the subject matter hereof.
(b) Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against
whom enforcement of such change, waiver, discharge or termination is
sought.
(c) This Agreement may be signed in any number of counterparts each of
which shall be deemed an original, which taken together shall constitute
one and the same instrument.
(d) The headings of the Sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part of this
Agreement.
SECTION 17. Non-Petition.
The Underwriter[s] hereby agree[s] not to cause or participate in the
filing of a petition in bankruptcy against the Company for the non-payment to
the Underwriter[s] of any amounts provided by this Agreement or otherwise until
one year and one day after the payment in full of all amounts due on the
Certificates in accordance with the terms of the Pooling and Servicing
Agreement.
23
If the foregoing is in accordance with your understanding of our agreement,
please sign this Agreement and return it to us.
Very truly yours,
SUNTRUST REAL ESTATE TRUST, LLC
By:
------------------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
written above.
SUNTRUST XXXXXXXX XXXXXXXX, INC.
By:
-------------------------------------------------
Name:
Title:
[other Underwriters]
By:
-------------------------------------------------
Name:
Title:
24
SCHEDULE I
Offered Certificates: [ ]
Registration Statement File Number: [ ]
Initial Class Certificate Balances of Offered Certificates:
Initial Class Certificate Balance
Class
-------------- ---------------------------------
Purchase Price: $[ ]
----------------------
Classes of Book-Entry
Certificates:
Description .
Denominations:
Cut-off Date: [__________ __], 20[__].
Pass-Through Rate:
Class Rate
--------------- ---------------------------
Certificates Ratings:
Class [Name of Rating Agency] [Name of Rating Agency]
--------- ------------------------- --------------------------
[ ] [ ]
[ ] [ ]
[ ] [ ]
[ ] [ ]
[ ] [ ]
[ ] [ ]
2
SCHEDULE II
DISCLOSURE PACKAGE
3
