Exhibit 1.1
SOUTHPOINT RESIDENTIAL MORTGAGE SECURITIES CORPORATION
[PASS-THROUGH CERTIFICATES]
[ASSET-BACKED NOTES]
UNDERWRITING AGREEMENT
[Date]
[Lead Underwriter]
[Names of Other Co-Managers]
c/o [Lead Underwriter]
[Address]
Ladies and Gentlemen:
Southpoint Residential Mortgage Securities Corporation, a Tennessee
corporation (the "Company") proposes to sell to you (the "Underwriters"), the
[Pass-Through Certificates][Asset-Backed Notes] of the series and classes, and
in the respective original principal or notional, as the case may be, amounts or
percentage interests, set forth in Schedule I hereto (the "Offered Securities"),
evidencing ownership interests in a trust consisting of [describe assets] to be
acquired by the Company (the "Assets") and related property (collectively, the
"Trust Fund"). The Assets will be acquired by the Company on the Closing Date
(as defined herein) from the seller (the "Seller") specified in the Prospectus
Supplement (as defined herein) pursuant to a sales agreement (the "Sales
Agreement"). The Assets will be of the type and will have the characteristics
described in the Prospectus Supplement, subject to the variances, ranges,
minimums and maximums set forth in the Prospectus Supplement, and will have the
aggregate principal balance set forth in the Prospectus Supplement, subject to
an upward or downward variance in principal balance, not to exceed the
percentage set forth in the Prospectus Supplement.
The Offered Securities, together with the other classes of
[certificates][notes] of the series specified on Schedule II hereto (the
"Private Securities," and collectively with the Offered Securities, the
"Securities") are to be issued under a [pooling and master servicing agreement
(the "Pooling and Servicing Agreement")][trust agreement (the "Trust Agreement")
and indenture (the "Indenture"), as applicable], dated as of the Cut-Off Date
(as defined in the Prospectus Supplement), among the [describe applicable
parties]. The Offered Securities of each class will be issued in the minimum
denominations and will have the terms set forth in the Prospectus Supplement.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed thereto in the [Pooling and Servicing
Agreement][Trust Agreement] [Indenture].
1. Representations and Warranties. The Company represents
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and warrants to and agrees with each of the Underwriters that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-___) on
Form S-3 for the registration under the Securities Act of 1933, as
amended (the "Act"), of Pass-Through Certificates and Asset-Backed
Notes (issuable in series), including the Securities, which
registration statement has become effective, and a copy of which, as
amended to the date hereof, has heretofore been delivered to you. The
Company proposes to file with the Commission pursuant to Rule 424(b)
under the rules and regulations of the Commission under the Act (the
"1933 Act Regulations") a supplement dated ______________ (the
"Prospectus Supplement"), to the prospectus dated ________________ (the
"Base Prospectus"), relating to the Offered Securities and the method
of distribution thereof. Such registration statement (No. 333-87431)
including exhibits thereto and any information incorporated therein by
reference including "Computational Materials" and "ABS Term Sheets"
(collectively, the "Computational Materials and ABS Term Sheets") as
defined in the No-Action Letter of May 20, 1994 issued by the
Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody
& Co. Incorporated and Xxxxxx Structured Asset Corporation, the
No-Action Letter of May 27, 1994 issued by the Commission to the Public
Securities Association, the No-Action Letter of February 17, 1995
issued by the Commission to Cleary, Gottlieb, Xxxxx & Xxxxxxxx on
behalf of the Public Securities Association, the No-Action Letter of
March 9, 1995 issued by the Commission to the Public Securities
Association and the No-Action Letter of April 5, 1996 issued by the
Commission to Greenwood Trust Company, Discover Card Master Trust I
(the "SEC No-Action Letters"), as amended at the date hereof, is
hereinafter called the "Registration Statement"; and the Base
Prospectus and the Prospectus Supplement and any information
incorporated therein by reference including Computational Materials and
ABS Terms Sheets, together with any amendment thereof or supplement
thereto authorized by the Company on or prior to the Closing Date for
use in connection with the offering of the Securities, are hereinafter
called the "Prospectus". Any preliminary form of the Prospectus
Supplement which has heretofore been filed pursuant to Rule 424, or
prior to the effective date of the Registration Statement pursuant to
Rule 402(a), or 424(a) is hereinafter called a "Preliminary Prospectus
Supplement."
(ii) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending or, to the
Company's knowledge, threatened by the Commission.
(iii) The Registration Statement and the Prospectus, as of the
date of the Prospectus Supplement, conform, and the Registration
Statement as of the effective date (the "Effective Date") and the
Prospectus, as of its date, each as revised, amended or supplemented
and filed with the Commission prior to the termination of the offering
of the Offered Securities, complied in all material respects to the
requirements of the Act and the 1933 Act Regulations, and the
Registration Statement, as of the Effective Date, did not, and as of
the Closing Date, will not, contain any untrue statement of a material
fact or and did not and will not omit to state a material fact required
to be stated therein
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or necessary to make the statements therein not misleading; and the
Prospectus, as of the date of the Prospectus Supplement did not, and as
of the Closing Date, will not contain any untrue statement of a
material fact and did not and will not 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,
however, that the Company makes no representations or warranties as to
the information contained in the Prospectus or any revision or
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through [Lead Underwriter] specifically for use in
connection with the preparation of the Prospectus or any revision or
amendment thereof or supplement thereto, and any information in any
Computational Materials or ABS Term Sheets required to be provided by
any Underwriter to the Company pursuant to Section 4.2, except to the
extent that such information constitutes Pool Information. As used
herein, "Pool Information" means information with respect to the
assumed characteristics of the Assets and administrative and servicing
fees. The Company acknowledges that the Underwriter Information
constitutes the only information furnished in writing by you or on your
behalf for use in connection with the preparation of the Registration
Statement or the Prospectus Supplement.
(iv) At or prior to the Closing Date, the direction by the
Company to the Trustee to execute, authenticate and deliver the Offered
Securities will have been duly authorized by the Company, and the
Offered Securities, when executed and authenticated in accordance with
the [Pooling and Servicing Agreement][Indenture or Trust Agreement, as
applicable], and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement will be duly and validly
issued and outstanding and entitled to the benefits of such Agreement.
[Each Security of the classes indicated to be "mortgage related
securities" under the heading "Legal Investment Considerations" in the
Prospectus Supplement will, when issued, be a "mortgage related
security" as such term is defined in Section 3(a)(41) of the Exchange
Act.]
(v) This Agreement has been duly authorized, executed and
delivered by the Company. At or prior to the Closing Date, the [Pooling
and Servicing Agreement][Indenture and Trust Agreement] and Sales
Agreement will have been duly authorized, executed and delivered by the
Company and will conform in all material respects to the descriptions
thereof contained in the Prospectus and, assuming the valid execution
and delivery thereof by the other parties thereto, the [Pooling and
Servicing Agreement][Indenture and Trust Agreement, as applicable] and
the Sales Agreement will constitute a legal, valid and binding
agreement of the Company enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights
generally, by general principles of equity and by the effect of the
exercise by the Trustee of certain remedial provisions, including
waivers, against the Assets.
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Tennessee with corporate power and authority to own its properties
and conduct its business as described in the Prospectus and to enter
into and perform its obligations under the [Pooling and Servicing
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Agreement][the Trust Agreement, the Indenture or the Sales Agreement,
as applicable] and this Agreement.
(vii) Each preliminary prospectus filed as part of the
Registration Statement as originally filed or as a part of any
amendment thereto, or filed pursuant to Rule 424 or Rule 462 under the
Act, complied as to form, when so filed, in all material respects with
the Act and the rules and regulations of the Commission thereunder.
(viii) Neither the execution and delivery by the Company of,
nor the performance by the Company of its obligations under, this
Agreement, the [Pooling and Servicing Agreement][Indenture or Trust
Agreement] or the Sales Agreement will contravene any provision of
applicable law or the articles of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company
that is material to the Company or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any subsidiary, and no consent, approval, authorization or order of,
or qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this Agreement,
the [Pooling and Servicing Agreement][Indenture or Trust Agreement] or
the Sales Agreement, except such as may be required by the securities
or "blue sky" laws of the various states in connection with the offer
and sale of the Offered Securities.
(ix) There are no legal or governmental proceedings pending
or threatened to which the Company is a party or to which any of the
properties of the Company are subject that are required to be described
in the Registration Statement or the Prospectus and that are not so
described, nor are there any statutes, regulations, contracts or other
documents required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(x) At the time of execution and delivery of the [Pooling
and Servicing Agreement][Indenture][Trust Agreement] and the Sales
Agreement, (1) the Company will own the Assets being transferred to the
Trust Fund pursuant thereto, free and clear of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens"), except to the extent permitted in the related
agreement, and will not have assigned to any person other than the
Trust Fund any of its right, title or interest in the Assets, (2) the
Company will have the power and authority to transfer the Assets to the
Trust Fund and to transfer the Offered Securities to you, (3) upon
execution and delivery to the Trustee of the [Pooling and Servicing
Agreement][Indenture and Trust Agreement] and the Sales Agreement, and
delivery of the Securities to the Company, the Trust Fund will own the
Assets free of Liens other than Liens permitted by the related
agreement or created or granted by you and (4) upon payment and
delivery of the Offered Securities to you, you will acquire ownership
of the Offered Securities, free of Liens other than Liens permitted by
the related agreement or created or granted by you.
(xi) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement,
the [Pooling and Servicing
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Agreement][Indenture and Trust Agreement] and Sales Agreement and the
Securities have been or will be paid by the Company at or prior to the
Closing Date.
(xii) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company [since _________].
(xiii) The Company is not an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended.
2. Purchase and Sale. Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the Company
agrees to sell, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, the respective actual or notional, as the case may
be, amounts or percentage interests set forth in Schedule I hereto in the
respective classes of Offered Securities at the respective purchase price for
each such class set forth therein.
3. Delivery and Payment. The Offered Securities shall be
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delivered at the office, on the date and at the time specified in, Schedule II
attached hereto, which place, date and time may be changed by agreement between
the Underwriters and the Company (such date and time of delivery of and payment
for such Offered Securities being hereinafter referred to as the "Closing
Date"). Delivery of the [Class __] Securities (which [Class __] Securities shall
also be referred to herein as the "DTC Registered Securities") shall be made to
you through The Depository Trust Company ("DTC") and delivery of the [Class __]
Securities (collectively, the "Definitive Securities") shall be made in
registered, certified form, in each case against payment by you of the purchase
prices thereof to or upon the order of the Company by wire transfer in
immediately available funds. The Definitive Securities shall be registered in
such names and in such denominations as you may request not less than two
business days in advance of the Closing Date. The Company agrees to have the
Definitive Securities available for inspection, checking and packaging by you 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. Offering by Underwriters.
4.1. It is understood that the several Underwriters propose to
offer the Offered Securities for sale to the public as set forth in the
Prospectus and that you will not offer, sell or otherwise distribute the Offered
Securities (except for the sale thereof in exempt transactions) in any state in
which the Offered Securities are not exempt from registration under "blue sky"
or state securities laws (except where the Offered Securities will have been
qualified for offering and sale at your direction under such "blue sky" or state
securities laws).
4.2. It is understood that each Underwriter may prepare and provide
to prospective investors certain Computational Materials and ABS Term Sheets in
connection with the offering of the Offered Securities, subject to the following
conditions:
(a) All Computational Materials and ABS Term Sheets provided by an
Underwriter to prospective investors that are required to be filed pursuant to
the SEC No-Action Letters shall bear a legend on each page including the
following statement:
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"THE INFORMATION CONTAINED HEREIN HAS BEEN PROVIDED BY [UNDERWRITER].
NEITHER THE ISSUER OF THE SECURITIES NOR ANY OF ITS AFFILIATES MAKES
ANY REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF THE
INFORMATION HEREIN. THE INFORMATION HEREIN IS PRELIMINARY, AND WILL BE
SUPERSEDED BY THE APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER
INFORMATION SUBSEQUENTLY FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION."
In the case of Collateral Term Sheets (as defined in the SEC No-Action Letters),
such legend shall also include the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE DESCRIPTION
OF THE MORTGAGE POOL CONTAINED IN THE PROSPECTUS SUPPLEMENT RELATING TO
THE SECURITIES AND SUPERSEDES ALL INFORMATION CONTAINED IN ANY
COLLATERAL TERM SHEETS RELATING TO THE MORTGAGE POOL PREVIOUSLY
PROVIDED BY [UNDERWRITER]."
Notwithstanding the foregoing, this subsection (a) will be satisfied if all
Computational Materials and ABS Term Sheets referred to therein bear a legend in
a form previously approved in writing by the Company.
(b) Any [Computational Material and] ABS Term Sheets are subject to the
review by and approval of the Company prior to their distribution to any
prospective investors and a copy of such [Computational Material and] ABS Term
Sheets as are delivered to prospective investors shall, in addition to the
foregoing delivery requirements, be delivered to the Company simultaneously with
delivery to prospective investors.
(c) Each Underwriter shall provide to the Company, for filing on Form
8-K as provided in Section 5(i), copies (in such format as required by the
Company) of all Computational Materials and ABS Term Sheets prepared by it that
are required to be filed with the Commission pursuant to the SEC No-Action
Letters. An Underwriter may provide copies of the foregoing in a consolidated or
aggregate form that includes all information required to be filed. All
Computational Materials and ABS Term Sheets described in this Section 4.2(c)
must be provided to the Company not later than 9:00 a.m. New York time one
business day before filing thereof is required pursuant to the terms of the SEC
No-Action Letters. Each Underwriter severally agrees that it will not provide to
any investor or prospective investor in the Offered Securities any Computational
Materials or ABS Term Sheets on or after the day on which Computational
Materials and ABS Term Sheets are required to be provided to the Company
pursuant to this Section 4.2(c) (other than copies of Computational Materials or
ABS Term Sheets previously submitted to the Company in accordance with this
Section 4.2(c) for filing pursuant to Section 5(i)), unless such Computational
Materials or ABS Term Sheets are preceded or accompanied by the delivery of a
Prospectus to such investor or prospective investor.
(d) All information included in the Computational Materials and ABS
Term Sheets shall be generated based on substantially the same methodology and
assumptions that are used to
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generate the information in the Prospectus Supplement as set forth therein;
provided, however, that the Computational Materials and ABS Term Sheets may
include information based on alternative methodologies or assumptions if
specified therein. If any Computational Materials or ABS Term Sheets that are
required to be filed were based on assumptions with respect to the Assets that
are incorrect, that differ from the final Pool Information in any material
respect or on Security structuring terms that were revised in any material
respect prior to the printing of the Prospectus, the Underwriter responsible
therefore shall prepare revised Computational Materials or ABS Term Sheets, as
the case may be, based on the final Pool Information and structuring
assumptions, circulate such revised Computational Materials and ABS Term Sheets
to all recipients of the preliminary versions thereof that indicated orally to
such Underwriter they would purchase all or any portion of the Securities, and
include such revised Computational Materials and ABS Term Sheets (marked, "as
revised") in the materials delivered to the Company pursuant to Section 4.2(c).
(e) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that (i) in the reasonable determination of the
Company [and the respective Underwriter] are not required to be filed pursuant
to the SEC No-Action Letters or (ii) have been determined to contain any
material error or omission, provided that, at the request of the respective
Underwriter, the Company will file Computational Materials or ABS Term Sheets
that contain a material error or omission if clearly marked "superseded by
materials dated [date]" and accompanied by corrected Computational Materials or
ABS Term Sheets that are marked "material previously dated [date], as
corrected". In the event that at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act, any Computational
Materials or ABS Term Sheets are determined, in the reasonable judgment of the
Company or the respective Underwriter, to contain a material error or omission,
such Underwriter shall prepare a corrected version of such Computational
Materials or ABS Term Sheets, shall circulate such corrected version of such
Computational Materials and ABS Term Sheets to all recipients of the prior
versions thereof that either indicated orally to such Underwriter they would
purchase all or any portion of the Offered Securities, or actually purchased all
or any portion thereof, and shall deliver copies of such corrected Computational
Materials and ABS Term Sheets (marked, "as corrected") to the Company for filing
with the Commission in a subsequent Form 8-K submission (subject to the
Company's obtaining an accountant's comfort letter in respect of such corrected
Computational Materials and ABS Term Sheets, which shall be at the expense of
such Underwriter) provided that if any such letter is required to be revised
solely because of a change in the Pool Information, any additional expenses for
such letter resulting from the change in Pool Information shall be paid by the
Company.
(f) If the Underwriter does not provide any Computational Materials and
ABS Term Sheets to the Company pursuant to Section 4.2(c), such Underwriter
shall be deemed to have represented, as of the Closing Date, that it did not
provide any prospective investors with any information in written or electronic
form in connection with the offering of the Offered Securities that is required
to be filed with the Commission in accordance with the SEC No-Action Letters,
and such Underwriter shall provide the Company with a certification to that
effect on the Closing Date.
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4.3. Each Underwriter severally represents and warrants and agrees
with the Company that as of the date hereof and as of the Closing Date that: (i)
the Computational Materials and ABS Term Sheets furnished by it to the Company
pursuant to Section 4.2(c) constitute (either in original, aggregate or
consolidated form) all of the materials furnished to prospective investors by
such Underwriter prior to the time of delivery thereof to the Company that are
required to be filed with the Commission with respect to the Offered Securities
in accordance with the SEC No-Action Letters, and such Computational Materials
and ABS Term Sheets comply with the requirements of the SEC No-Action Letters;
(ii) on the date any such Computational Materials and ABS Term Sheets with
respect to such Securities (or any written or electronic materials furnished to
prospective investors on which the Computational Materials and ABS Term Sheets
are based) were last furnished to each prospective investor and on the date of
delivery thereof to the Company pursuant to Section 4.2(c) and on the related
Closing Date, such Computational Materials and ABS Term Sheets (or materials)
were accurate in all material respects when read in conjunction with the
Prospectus (taking into account the assumptions explicitly set forth in the
Computational Materials), except to the extent of any errors therein that are
caused by errors in the Pool Information; (iii) each Underwriter has not and
will not represent to potential investors that any Computational Materials and
ABS Term Sheets were prepared or disseminated on behalf of the Company; and (iv)
all Computational Materials and ABS Term Sheets (or underlying materials
distributed to prospective investors by it on which the Computational Materials
and ABS Term Sheets were based) contained and will contain the legend in the
form set forth in Section 4.2(a) (or in such other form previously approved in
writing by the Company).
Notwithstanding the foregoing, no Underwriter makes any representation
or warranty as to whether any Computational Materials or ABS Term Sheets (or any
written or electronic materials furnished to prospective investors on which the
Computational Materials or ABS Term Sheets are based) included or will include
any inaccurate statement resulting directly from any error contained in the Pool
Information.
5. Agreements. The Company agrees with each Underwriter that:
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(a) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Securities, the Company will furnish you with
a copy of each such proposed amendment or supplement and will not file any such
proposed amendment or supplement to which any Underwriter reasonably objects.
(b) The Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424 under the Act by
means reasonably calculated to result in filing with the Commission pursuant to
said rule and, if necessary, within 15 days of the Closing Date, will transmit
for filing by means reasonably calculated to result in filing with the
Commission a report on Form 8-K for purposes of filing the [Pooling and
Servicing Agreement][Trust Agreement][Indenture][Sales Agreement], and will
promptly advise each Underwriter when the Prospectus Supplement has been so
filed.
(c) Prior to the termination of the offering of the Offered
Securities, the Company will promptly advise each Underwriter (i) when any
amendment to the Registration Statement has become effective or any revision of
or supplement to the Prospectus has been so filed (unless such amendment,
revision or supplement does not relate to the Securities), (ii) of any request
by
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the Commission for any amendment of the Registration Statement or the Prospectus
or for any additional information (unless such request for additional
information does not relate to the Securities), (iii) of any written
notification received by the Company of the suspension of qualification of the
Offered Securities, for sale in any jurisdiction or the initiation of
threatening of any proceeding for such purpose and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or to the knowledge of the Company, the threatening
of any proceeding for that 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. Except as otherwise provided in Section 5(d),
the Company will not file prior to the termination of such offering any
amendment to the Registration Statement or any revision of or supplement to the
Prospectus (other than any such amendment, revision or supplement which does not
relate to the Offered Securities) which shall be disapproved by the Underwriters
after reasonable notice and review of such filing.
(d) If at any time when a Prospectus relating to the Offered Securities
is required to be delivered under the Act (i) any event occurs as a result of
which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein in the light of the circumstances under which they were
made not misleading, or (ii) it shall be necessary to revise, amend or
supplement the Prospectus to comply with the Act or the rules and regulations of
the Commission thereunder, the Company promptly will notify each Underwriter and
will, upon the request of any Underwriter, or may, after consultation with each
Underwriter, prepare and file with the Commission a revision, amendment or
supplement which will correct such statement or omission or effect such
compliance, and furnish without charge to each Underwriter as many copies as
such Underwriter may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance.
(e) The Company will furnish to each Underwriter and counsel to each
Underwriter, without charge, conformed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus relating
to the Offered Securities is required under the Act, as many copies of the
Prospectus, any documents incorporated by reference therein and any revisions or
amendments thereof or supplements thereto as may be reasonably requested.
(f) The Company will endeavor to arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as you may
reasonably designate and will maintain such qualification in effect so long as
required for the initial distribution of the Offered Securities; 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 that would
subject it to general or unlimited service of process in any jurisdiction where
it is not so subject.
(g) Whether or not the transactions contemplated in the [Pooling and
Servicing Agreement][Trust Agreement][Indenture] were consummated or this
Agreement is terminated, the Company shall pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement, including:
(i) the reasonable fees, disbursements and expenses of the Company's counsel in
connection with the registration and delivery of the Offered Securities under
the Act and all other reasonable fees or expenses in connection with the
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preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Offered Securities to the Underwriters, including
any transfer or other taxes payable thereon, (iii) the cost of printing or
producing any "blue sky" memorandum in connection with the offer and sale of the
Offered Securities under state securities laws and all expenses in connection
with the qualification of the Offered Securities for offer and sale under state
securities laws as provided in Section 5(f), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the "blue sky" memorandum, (iv)
all filing fees and disbursements of counsel for the Underwriters incurred in
connection with any review and qualification of the offering by the National
Association of Securities Dealers, Inc., (v) the cost of printing the Offered
Securities, (vi) the costs and charges of any transfer agent, registrar or
depositary, and (vii) all other reasonable costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section.
(h) So long as any Offered Securities are outstanding, upon request of
any Underwriter, the Company will, or will cause the [[Master] Servicer] to,
furnish to such Underwriter, as soon as available, a copy of (i) the annual
statement of compliance delivered by the [[Master] Servicer] to the Trustee
under the [Pooling and Servicing Agreement][Trust Agreement][Indenture], (ii)
the annual independent public accountants' servicing report furnished to the
Trustee pursuant to the [Pooling and Servicing Agreement] [Trust
Agreement][Indenture], (iii) each report of the Company regarding the Offered
Securities filed with the Commission under the Exchange Act or mailed to the
holders of the Offered Securities and (iv) from time to time, such other
information concerning the Offered Securities which may be furnished by the
Company or the [[Master] Servicer] without undue expense and without violation
of applicable law.
(i) The Company shall file the Computational Materials and ABS Term
Sheets (if any) provided to it by any Underwriter under Section 4.2(c) with the
Commission pursuant to a Current Report on Form 8-K by 10:00 a.m. on the morning
the Prospectus is delivered to such Underwriter or, the case of any Collateral
Term Sheet required to be filed prior to such date, by 10:00 a.m. on the second
business day following the first day on which such Collateral Term Sheet has
been sent to a prospective investor; provided, however, that prior to such
filing of the Computational Materials and ABS Term Sheets (other than any
Collateral Term Sheets that are not based on the Pool Information) by the
Company, such Underwriter must comply with its obligations pursuant to Section
4.2 and the Company must receive a letter from ______________________, certified
public accountants, satisfactory in form and substance to the Company and its
counsel, to the effect that such accountants have performed certain specified
procedures, all of which have been agreed to by the Company, as a result of
which they determined that all information that is included in the Computational
Materials and ABS Term Sheets (if any) provided by the Underwriters to the
Company for filing on Form 8-K, as provided in Section 4.2 and this Section
5(i), is accurate except as to such matters that are not deemed by the Company
to be material. The foregoing letter shall be at the sole expense of the
Company. The Company shall file any corrected Computational Materials or ABS
Term Sheets described in Section 4.2(e) as soon as practicable following receipt
thereof.
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6. Conditions to the Obligations of Underwriters. The obligation
---------------------------------------------
of each Underwriter to purchase the Offered Securities to be purchased by it
shall be subject to the accuracy in all material respects of the representations
and warranties on the part of the Company contained herein as of the date hereof
and as of the Closing Date, to the accuracy of the statements of the Company
made in any officer's certificate pursuant to the provisions hereof, to the
performance in all material respects by the Company of its obligations hereunder
and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened, and the Prospectus
Supplement shall have been filed or transmitted for filing by means reasonably
calculated to result in a filing with the Commission pursuant to Rule 424 under
the Act.
(b) The Company shall have furnished to the Underwriters a
certificate, dated the Closing Date, of the Company, signed by an authorized
officer of the Company, to the effect that the signer of such certificate has
carefully examined the Registration Statement, the Prospectus, this Agreement
[the Pooling and Servicing Agreement][the Indenture][the Trust Agreement] and
that:
(i) The representations and warranties of the Company in
this Agreement [the Pooling and Servicing Agreement][the Indenture][the
Trust Agreement] are true and correct in all material respect 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 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 has been issued, and no proceedings for that
purpose have been instituted and are pending or, to his knowledge, have
been threatened as of the Closing Date;
(iii) Nothing has come to the attention of such person that
would lead him to believe that the Prospectus (other than any
Computational Materials or ABS Term Sheets incorporated therein by
reference) contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and
(iv) Since ___________, there has been no material adverse
change (not in the ordinary course of business) in connection with the
Company.
(c) The Company shall have furnished or caused to have been
furnished to the Underwriters a certificate, dated the Closing Date, of the
Seller, signed by an authorized officer of the Seller, to the effect that the
signer of such certificate has carefully examined the Prospectus and nothing has
come to the attention of such person that would lead him to believe that the
Prospectus contains any untrue statement of a material fact with respect to the
Seller or the Assets or omits to state any material fact with respect to the
Seller or the Assets necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
11
(d) The Company shall have furnished to you and opinion, dated the
Closing Date, of Messrs. Hunton & Xxxxxxxx, special counsel to the Company,
substantially to the effect that:
(i) The Registration Statement and any amendments thereto
have 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 not withdrawn, no proceedings for that
purpose have been instituted or threatened and not terminated; and the
Registration Statement, the Prospectus and each amendment or supplement
thereto, as of their respective effective or issue dates (other than
the financial and statistical information contained therein as to which
such counsel need express no opinion), complied as to form in all
material respects with the applicable requirements of the Act and the
rules and regulations of the Commission thereunder;
(ii) To the best knowledge of such counsel, there are not
material contracts, indentures or other documents of a character
required to be described or referred to in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto;
(iii) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Tennessee;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) Each of the [Pooling and Servicing Agreement] [
Indenture] [Trust Agreement] and the Sales Agreement has been duly
authorized, executed and delivered by the Company and, assuming the
due authorization, execution and delivery by other parties thereto,
constitutes a valid, legal and binding agreement of the Company, is
enforceable against the Company in accordance with its terms, subject
as to enforceability to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally, to general principals of equity regardless of whether
enforcement is sought in a proceeding in equity or at law and to the
effect of the exercise by the Trustee of certain remedial provisions,
including waivers, against the Assets;
(vi) The Offered Securities have been duly authorized and,
assuming authentication and delivery in the manner contemplated in the
[Pooling and Servicing Agreement][Indenture][Trust Agreement], and upon
delivery by the Company of the Offered Securities to be purchased by
the Underwriters and payment by the Underwriters of the purchase price
therefore in the manner contemplated by this Agreement, the Offered
Securities will be (A) validly issued and outstanding and entitled to
the benefits of the [Pooling and Servicing Agreement][Indenture][Trust
Agreement] and (B) free and clear of any lien, pledge, encumbrance or
other security interest other than one permitted by the [Pooling and
Servicing Agreement][Indenture][Trust Agreement] or created or granted
by any Underwriter;
12
(vii) To the best knowledge of such counsel, no consent,
approval, authorization or order of any New York, Tennessee or federal
governmental agency or body or any New York, Tennessee or federal court
is required for the consummation by the Company of the transactions
contemplated by the terms of this Agreement, the [Pooling and Servicing
Agreement][Indenture][Trust Agreement] or the Sales Agreement, except
such as may be required under the "blue sky" or state securities laws
of any jurisdiction in connection with the offering, sale or
acquisition of the Offered Securities, any recordations of the
assignment of the Assets to the Trustee (to the extent such
recordations are required pursuant to the [Pooling and Servicing
Agreement][Trust Agreement]) that have not yet been completed and such
other approvals as have been obtained;
(viii) The sale of the Offered Securities to be purchased by
the Underwriters pursuant to this Agreement and the consummation of any
of the transactions contemplated by the terms of the [Pooling and
Servicing Agreement][Indenture][Trust Agreement], Sales Agreement or
this Agreement do not conflict with or result in a breach or violation
of any material term or provision of, or constitute a default under,
the articles of incorporation of the Company, or to the best knowledge
of such counsel, any indenture or other agreement or instrument to
which the Company is a party or by which it is bound, or any New York,
Tennessee or federal statute or regulation applicable to the Company or
an order of any New York, Tennessee or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Company;
(ix) The Offered Securities, the Sales Agreement and the
[Pooling and Servicing Agreement][Indenture][Trust Agreement] conform
to the descriptions thereof contained in the Prospectus;
(x) The statements in the Prospectus under the headings
"Federal Income Tax Consequences," "Legal Investment Considerations"
and "ERISA Considerations" have been reviewed by such counsel and are
correct in all material respects;
(xi) [The Offered Securities indicated under the heading
"Summary of Terms" and "Legal Investment Considerations" in the
Prospectus Supplement to be "mortgage related securities" will be
mortgage related securities, as defined in Section 3(a)(41) of the
Exchange Act, so long as such Offered Securities are rated in one of
the two highest rating categories by at least one nationally recognized
statistical rating organization;] [and]
(xii) The [Pooling and Servicing Agreement][Indenture]
[Trust Agreement] [is not required to be][has been] qualified] under
the Trust Indenture Act of 1939, as amended, and the Trust Fund
created by the [Pooling and Servicing Agreement][Trust Agreement] is
not required to be registered under the Investment Company Act of
1940, as amended[.] [; and]
[(xiii) The Trust Fund as described in the Prospectus
Supplement and the Pooling and Servicing Agreement will qualify as a
"real estate mortgage investment conduit" ("REMIC") within the meaning
of Section 860D of the Internal Revenue Code
13
of 1986, as amended (the "Code"), assuming: (i) an election is made to
treat the Trust Fund as a REMIC, (ii) compliance with the Pooling and
Servicing Agreement and (iii) compliance with changes in the law,
including any amendments to the Code or applicable Treasury regulations
thereunder.]
Such counsel shall also state that nothing has come to its attention
that would lead such counsel to believe that the Registration Statement, at the
time it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as of the
date of the Prospectus Supplement, and on the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits 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; it being
understood that such counsel need express no view as to (i) any financial,
economic or statistical information and data contained therein or incorporated
therein by reference or (ii) any description in the Prospectus of any third
party providing credit enhancement to the Offered Securities.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the [Pooling and
Servicing Agreement][Indenture][Trust Agreement]. Such opinion may assume the
due authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the Company or its
affiliates. Such opinion may be qualified as an opinion only on the corporate
laws of the States of Tennessee and New York and the federal law of the United
States. To the extent that such counsel relies upon the opinion of other counsel
in rendering any portion of its opinion, the opinion of such other counsel shall
be attached to and delivered with the opinion of such counsel that is delivered
to the Underwriters.
(e) Each party providing credit enhancement to the Offered Securities
shall have furnished to the Underwriters an opinion, dated the Closing Date, of
its counsel, with respect to the Registration Statement and the Prospectus, and
such other related matters, in the form previously agreed to by such provider
and the Underwriters.
(f) The Underwriters shall have received from their counsel such
opinion or opinions, dated the Closing Date, with respect to the issuance and
sale of the Offered Securities, the Registration Statement and the Prospectus,
and such other related matters as you may reasonably require.
(g) The Underwriters shall have received from ___________________,
certified public accountants, (a) a letter dated the date hereof and
satisfactory in form and substance to you and your counsel, to the effect that
they have performed certain specified procedures, all of which have been agreed
to by you, as a result of which they determined that certain information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement under the captions "The Asset Pool", "Description of the
[Certificates][Notes]" and "Maturity and Prepayment Considerations" agrees with
the records of the Company and the Seller excluding any questions of legal
interpretation and (b) the letter prepared pursuant to Section 5(i).
14
(h) Subsequent to the date hereof, there shall not have occurred
any change, or any development involving a prospective change, in or affecting
the business or properties of the Seller which in your reasonable judgment
materially impairs the investment quality of the Offered Securities so as to
make it impractical or inadvisable to proceed with the public offering or the
delivery of the Offered Securities as contemplated by the Prospectus.
(i) The Offered Securities shall be rated not lower than the
required ratings set forth under the heading "Ratings" in the Prospectus
Supplement, such ratings shall not have been rescinded and no public
announcement shall have been made that any such required rating of the Offered
Securities has been placed under review (otherwise than for possible upgrading).
(j) The Underwriters shall have received copies of any opinions of
counsel to the Company supplied to the rating organizations relating to certain
matters with respect to the Offered Securities. Any such opinions shall be dated
the Closing Date and addressed to the Underwriters or accompanied by reliance
letters addressed to the Underwriters.
(k) All Classes of Offered Securities being publicly offered by
the Underwriters shall have been issued and paid for pursuant to the terms of
this Agreement.
(l) The Trustee shall have furnished to the Underwriters an
opinion dated the Closing Date, of counsel to the Trustee (who may be an
employee of the Trustee), substantially to the effect that:
(i) The Trustee has full corporate power and authority to
execute and deliver the [Pooling and Servicing Agreement][Indenture]
[Trust Agreement] and to perform its obligations thereunder and to
execute, countersign and deliver the Offered Securities.
(ii) The [Pooling and Servicing Agreement][Indenture] [Trust
Agreement] has been duly authorized, executed and delivered by the
Trustee.
(iii) The [Pooling and Servicing Agreement][Indenture] [Trust
Agreement] is a legal, valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium,
receivership, conservatorship and similar laws affecting the rights of
creditors generally, and subject, as to enforceability, to general
principles of equity, regardless of whether such enforcement is
considered in a proceeding at law or equity.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the [Pooling and Servicing
Agreement][Indenture][Trust Agreement]. Such opinion may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Trustee or its affiliates. Such
opinion may be qualified as an opinion only on the laws of the State of New York
and federal law of the United States. To the extent that such counsel relies
upon the opinion of other counsel in rendering any portion of its opinion, the
opinion of such other counsel shall be attached to and delivered with the
opinion of such counsel that is delivered to the Underwriters.
15
(a) The Seller shall have sold the Assets to the Company pursuant to
the Sales Agreement.
(b) The Company shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may reasonably have
requested, and all proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be in all material
respects reasonably satisfactory in form and substance to the Underwriters and
their counsel.
(c) Since ________, there shall have been no material adverse change
(not in the ordinary course of business) in the judgment of each Underwriter in
the condition of the Company that makes it, in the judgment of such Underwriter,
impractible to market the Offered Securities on the terms and in the manner
contemplated by the Prospectus.
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,
this Agreement and all obligations of an Underwriter hereunder may be canceled
at, or at any time prior to, the Closing Date by such Underwriter. Notice of
such cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
16
7. Indemnification and Contribution. The Company agrees to indemnify
--------------------------------
and hold harmless each of the Underwriters and each person, if any, who controls
either such Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act"), from and
against any and all losses, claims, damages and 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) were caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement as originally filed
or in any amendment thereof or other filing incorporated by reference therein,
including Computational Materials and ABS Term Sheets, or in any preliminary
prospectus or the Prospectus or incorporated by reference therein, including
Computational Materials and ABS Term Sheets (if used within the period mentioned
in Section 5(a) and as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein,
in light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities were caused by any such
untrue statement or omission or alleged untrue statement or omission made
therein based upon and in conformity with (i) the information furnished in
writing to the Company by any Underwriter through [Lead Underwriter]
specifically for use in connection with the preparation of the Registration
Statement, any preliminary prospectus or the Prospectus or any revision or
amendment thereof or supplement thereto and (ii) any information in any
Computational Materials or ABS Term Sheets required to be provided by any
Underwriter to the Company pursuant to Section 4.2, except to the extent such
material misstatement or omission is based upon the Pool Information. Such
indemnity with respect to any Corrected Statement (as defined below) in such
Prospectus (or supplement thereto) shall not inure to the benefit of the
Underwriters (or any person controlling either of the Underwriters) from whom
the person asserting any loss, claim, damage or liability purchased the Offered
Securities that are the subject thereof if such person did not receive a copy of
the supplement to such Prospectus at or prior to the confirmation of the sale of
such Securities and the untrue statement or omission of material fact contained
in such Prospectus (or supplement thereto) was corrected (a "Corrected
Statement") in such other supplement and such supplement was furnished by the
Company to the Underwriters prior to the delivery of such confirmation.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company and its directors and officers who sign the
Registration Statement and any person controlling the Company within the meaning
of either Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to the Underwriters, but only
with reference to (i) information relating to the Underwriters furnished in
writing to the Company by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, any preliminary prospectus
or the Prospectus or any revision or amendment thereof or supplement thereto and
(ii) any Computational Materials, the ABS Term Sheets or the Collateral Term
Sheets, as applicable, except to the extent of any errors in the Computational
Materials or ABS Term Sheets that are caused by errors in the Pool Information.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two
17
preceding paragraphs, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by _________________
in the case of parties indemnified pursuant to the first paragraph of this
Section 7 and by the Company in the case of parties indemnified pursuant to the
second paragraph of this Section 7. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time any indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claim that are the subject matter of
such proceeding.
To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party under the first or second paragraph of this
Section 7 or is insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand, and by the several
Underwriters on the other, from the offering of the Offered Securities or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand, and of the several Underwriters on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The
18
relative benefits received by the Company on the one hand, and any Underwriter
on the other, in connection with the offering of the Offered Securities shall be
deemed to be in the same respective proportions that the total net proceeds from
the offering of the Offered Securities (before deducting expenses) received by
the Company and the total underwriting discounts and commissions received by
each of the Underwriters in respect thereof respectively, bear to the aggregate
public offering price of the Offered Securities. The relative fault of the
Company on the one hand, and of any Underwriter on the other, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by an
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. Each
Underwriter's obligation to contribute pursuant to this Section 7 is several in
proportion to the respective principal amounts of Offered Securities it has
purchased hereunder, and not joint.
The Company and the several Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which [the total
underwriting discounts and commissions received by such Underwriter in
connection with the Offered Securities underwritten and distributed to the
public by such Underwriter] [the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public]
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of the
Underwriters or any person controlling either of the Underwriters or by on
behalf of the Company, its directors or officers or any person controlling the
Company and (iii) acceptance of any payment for any of the Offered Securities.
19
8. Termination. This Agreement shall be subject to termination in
-----------
[Lead Underwriter]'s absolute discretion, by notice given to the Company, if (a)
after the execution and delivery of this Agreement and prior to the Closing Date
(i) trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Underwriters, is
material and adverse and such event singly or together with any other such
event, makes it, in the judgment of the Underwriters, impracticable to market
the Offered Securities on the terms and in the manner contemplated in the
Prospectus or (b) if the sale of the Securities provided for herein is not
consummated because of any failure or refusal on the apart of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement. If you terminate this Agreement in accordance with this Section
8 or because of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, the Company
will reimburse you for all reasonable out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been reasonably
incurred by the Underwriters in connection with the proposed purchase and sale
of the Securities.
9. Default by an Underwriter. If any one or more of the Underwriters
-------------------------
shall fail to purchase and pay for any of the Offered 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
aggregate principal amount of all the Offered Security of the various Classes
set forth opposite the name of all the remaining Underwriters) the Offered
Securities that the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate principal
amount of Offered Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate principal amount
of all of the Offered Securities set forth in the Prospectus Supplement, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Offered Securities, and if such
nondefaulting Underwriters do no purchase all the Offered 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 nondefaulting Underwriters shall determine in order that
required changes in the Registration Statement and the 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 to any nondefaulting Underwriter for damages occasioned by its
defaulting hereunder.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of the failure or refusal on the part of the Company to comply
with the terms or fulfill any of the conditions of this Agreement, or if for any
reason the Company shall reimburse the Underwriters
20
or such Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Offered Securities.
10. Representations and Indemnities to Survive. The respective
------------------------------------------
indemnity and contribution agreements and the representations, warranties and
other statements of the Company, its officers and the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any termination of this Agreement, 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 7 and delivery of and payment for the
Offered Securities.
11. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number of
------------
counterparts, each of which shall be an original, withthe same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and
--------------
construed in accordance with the internal laws of the Stateof New York, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
14. Headings. The headings of the sections of this Agreement have
--------
been inserted for convenience of reference only andshall not be deemed a part of
this Agreement.
15. Notices. All communications hereunder shall be in writing and
-------
effective only on receipt and, if sent to an Underwriter, shall be delivered to
the address specified on the signature page hereof; or if sent to the Company,
shall be delivered to Southpoint Residential Mortgage Securities Corporation,
Xxxxxx Xxxxxx Tower, Fifty Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxx, telephone (000) 000-0000, telecopy (000) 000-0000.
16. Miscellaneous. Time shall be of the essence of this Agreement.
-------------
This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof. Neither this Agreement nor
any term hereof may be change, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
by and among the Company and each Underwriter.
Very truly yours,
SOUTHPOINT RESIDENTIAL MORTGAGE
SECURITIES CORPORATION
By:____________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted.
Accepted, ___________, ____
[ ]
[NAMES OF OTHER CO-MANAGERS]
Acting severally on behalf of themselves
and the several Underwriters named in
Schedule I hereto.
By
By:________________________
Name:
Title:
22
SCHEDULE I
I-1
SCHEDULE II
II-1
