Exhibit 1.1
Form of Underwriting Agreement
Exhibit No. 1.1
$[ ]
FINANCE AMERICA SECURITIES, LLC
[ ]
Asset-Backed [Certificates] [Notes], Series [ ],
Class [ ]
Class [ ]
UNDERWRITING AGREEMENT
[ ]
[UNDERWRITERS]
[ ]
[ ]
Ladies and Gentlemen:
[Finance America Securities, LLC (the "Depositor") has authorized the
issuance and sale of Finance America Securities, LLC Asset-Backed
Certificates, Series [ ] Class [ ], and Class [ ] Certificates (the "Class [ ]
Certificates") and the Class [R] Certificates (the "Class [R] Certificates"
and together with the Class [ ] Certificates, the "Securities"). The
Securities evidence in the aggregate the beneficial interest in a pool of [ ]
mortgage loans (the "Mortgage Loans") and certain funds on deposit in accounts
held by the Trustee in Trust for the Trust. The Mortgage Loans are secured by
first [or second] deeds of trust and mortgages primarily on [one-to
four-family residential] properties.]
[Finance America Securities, LLC (the "Depositor") has entered into a
Trust Agreement dated as of ____________ ] (the "Trust Agreement") with
[_____________________] (the "Owner Trustee") and [____________________], as
seller creating Finance America Securities, LLC [ ] Loan Trust [________] (the
"Trust"), a statutory business trust established under the laws of the State
of [Delaware]. The Depositor proposes to direct the Owner Trustee pursuant to
the Trust Agreement to cause the Trust to issue Finance America Securities,
LLC [ ] Loan Trust Series [____________], Class [ ] Notes (the "Class [ ]
Notes") and a single class of ownership interests (the "Ownership Interests"
and, together with the Class [ ] Notes, the "Securities").]
Only the Class [ ] [Certificates] [Notes] are being purchased by [ ],
[ ______________ ] and [ ______________ ] (each, an "Underwriter" and
collectively, the "Underwriters"), severally, in the amount set forth opposite
their names on Schedule A, except that the amount purchased by each
Underwriter may change in accordance with Section X of this Agreement.
[The Securities will be issued under a pooling and servicing agreement
(the "Pooling and Servicing ____ Agreement"), _____ dated ____ as ____ of ____
[ ____ ] ____ among ____ the ____ Depositor, [ ], as servicer (the
"Servicer"), [ _________ ], as seller (the "Seller") and [ ], _______ as
________ trustee ________ (the ________ "Trustee"). ________ The ________
Securities will evidence fractional undivided interests in the property held
in trust for the holders of such Securities (the "Trust"). The assets of the
Trust will include, among other things, the Mortgage ____ Loans ____ conveyed
____ to ____ the ____ Trust ____ on ____ [ ]. ____ The ____ aggregate
undivided interest in the Trust represented by the Class [ ] Certificates
initially will be ____ equal ____ to ____ $[ ] of ____ principal, ____ which
____ represents ____ approximately [ ]% of the outstanding principal balances
of the Mortgage Loans as of [ ] ____ (the _____ "Cut-Off _____ Date"). _____
Simultaneously _____ with ____ the _____ execution ____ of the Pooling and
Servicing Agreement, the Depositor will enter into a mortgage loan purchase
agreement (the "Purchase Agreement") with the Seller, pursuant to which the
Seller will transfer to the Depositor all of its right, title and interest in
and to the Mortgage Loans as of the Cut-Off Date and the collateral securing
each Mortgage Loan.]
[The Class [ ] Notes will be secured by the assets of the Trust
consisting of a pool of mortgage loans secured by first [or second] deeds of
trust and mortgages primarily on [one-to four-family residential properties]
(the "Mortgage Loans") conveyed to the Trust by the Depositor pursuant to a
sale and servicing agreement dated as of [ ___________ ] (the "Sale and
Servicing Agreement") among the Depositor, the Trust, [ ______________ ], as
indenture trustee (the "Indenture Trustee") and [ ______________ ], as seller
(the "Seller") and servicer (the "Servicer"). The Depositor will acquire the
Mortgage Loans, simultaneously with the execution of the Sale and Servicing
Agreement, pursuant to a mortgage loan purchase agreement dated as of [
__________ ] (the "Purchase Agreement") between the Depositor, as purchaser
and [ ____________ ], as seller, pursuant to which the Seller will transfer to
the Depositor all of its right, title and interest in and to the Mortgage
Loans after the Cut-Off Date and the collateral securing each Mortgage Loan.]
[The Class [ ] Notes will be issued pursuant to an indenture to be
dated as of [ ] (the "Indenture") between the Trust, as issuer and the
Indenture Trustee. The Ownership Interests will evidence fractional undivided
interests in the property held in the Trust. The aggregate principal balance
of the Class [ ] Notes initially will be equal to $[ ___________ ], which
represents approximately [ ____ ]% of the outstanding principal balances of
the Mortgage Loans as of the close of business on [ _______________ ] (the
"Cut-Off Date").]
[The Class [ ] [Certificates] [Notes] will have the benefit of a
financial guaranty insurance policy (the "Policy") issued by [ ] (the
"Insurer"), pursuant to an Insurance Agreement (the "Insurance Agreement")
dated as of [ ] among the Seller, the Servicer, the Depositor, the [Indenture]
Trustee and the Insurer.]]
[An election will be made to treat the assets of the Trust as a "real
estate mortgage investment conduit" (the "REMIC") for federal income tax
purposes. The Class [ ] Certificates will represent beneficial ownership of
"regular interests" in the REMIC and the Class [R] Certificates will represent
beneficial ownership of the single class of "residual interests" in the
REMIC.]
The Class [ ] [Certificates] [Notes] are more fully described in a
Registration Statement which the Depositor has furnished to the Underwriters.
Capitalized terms used but not defined herein shall have the meanings given to
them in [the Pooling and Servicing Agreement] [the Sale and Servicing
Agreement].
[The Depositor will enter into an Indemnification Agreement (the
"Indemnification Agreement"), dated as of [ ], among the Underwriters, the
Depositor, the Insurer and the Seller, to govern the liability of the several
parties with respect to the losses resulting from material misstatements or
omissions contained in the Prospectus Supplement.]
This Underwriting Agreement, [the Pooling and Servicing Agreement]
[the Sale and Servicing Agreement], [the Insurance Agreement,] the Purchase
Agreement and [the Indemnification Agreement] are referred to collectively
herein as the "Agreements".
Section I. Representations and Warranties of the Depositor. The
Depositor represents and warrants to, and agrees with the Underwriters that:
A. A Registration Statement on Form S-3 (No. 333-[ ]) has (i) been
prepared by the Depositor in conformity with the requirements of the
Securities Act of 1933 (the "Securities Act") and the rules and regulations
(the "Rules and Regulations") of the United States Securities and Exchange
Commission (the "Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the Securities Act.
Copies of such Registration Statement have been delivered by the Depositor to
the Underwriters. As used in this Agreement, "Effective Time" means the date
and the time as of which such Registration Statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time;
"Registration Statement" means such registration statement, at the Effective
Time, including any documents incorporated by reference therein at such time;
and "Prospectus" means such final prospectus, as first supplemented by a
prospectus supplement (the "Prospectus Supplement") relating to the Class [ ]
[Certificates] [Notes], as first filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations. Reference made herein to the Prospectus
shall be deemed to refer to and include any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as
of the date of the Prospectus, and any reference to any amendment or
supplement to the Prospectus shall be deemed to refer to and include any
document filed under the Securities Exchange Act of 1934 (the "Exchange Act")
after the date of the Prospectus and incorporated by reference in the
Prospectus; and any reference to any amendment to the Registration Statement
shall be deemed to include any report filed with the Commission with respect
to the Trust pursuant to Section 13(a) or 15(d) of the Exchange Act after the
date of the Prospectus that is incorporated by reference in the Registration
Statement. There are no contracts or documents of the Depositor which are
required to be filed as exhibits to the Registration Statement pursuant to the
Securities Act or the Rules and Regulations which have not been so filed or
incorporated by reference therein on or prior to the Effective Date of the
Registration Statement. The conditions for use of Form S-3, as set forth in
the General Instructions thereto, have been satisfied.
To the extent that any Underwriter (i) has provided to the
Depositor Collateral term sheets (as hereinafter defined) that such
Underwriter has provided to a prospective investor, the Depositor has filed
such Collateral term sheets as an exhibit to a report on Form 8-K within two
business days of its receipt thereof, or (ii) has provided to the Depositor
Structural term sheets or Computational Materials (each as defined below) that
such Underwriter has provided to a prospective investor, the Depositor will
file or cause to be filed with the Commission a report on Form 8-K containing
such Structural term sheet and Computational Materials, as soon as reasonably
practicable after the date of this Agreement, but in any event, not later than
the date on which the Prospectus is filed with the Commission pursuant to Rule
424 of the Rules and Regulations.
B. The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission,
as the case may be, conform in all respects to the requirements of the
Securities Act and the Rules and Regulations. The Registration Statement, as
of the Effective Date thereof and of any amendment thereto, did not contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Prospectus as of its date and as amended or supplemented as of
the Closing Date does not and 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 no representation or warranty is made as
to information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Depositor in writing by the Underwriters expressly for use
therein.
C. The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
D. Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the general
affairs, management, financial condition, or results of operations of the
Depositor, otherwise than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
E. The Depositor has been duly incorporated and is validly existing as
a limited liability company in good standing under the laws of its
jurisdiction of formation, is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which its ownership
or lease of property or the conduct of its business requires such
qualification, and has all power and authority necessary to own or hold its
properties, to conduct the business in which it is engaged and to enter into
and perform its obligations under the Agreements and to cause the Securities
to be issued.
F. There are no actions, proceedings or investigations pending before
or threatened by any court, administrative agency or other tribunal to which
the Depositor is a party or of which any of its properties is the subject (a)
which if determined adversely to the Depositor would have a material adverse
effect on the business or financial condition of the Depositor, (b) asserting
the invalidity of the Agreements or the Securities, (c) seeking to prevent the
issuance of the Securities or the consummation by the Depositor of any of the
transactions contemplated by any of the Agreements or (d) which might
materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, any of the Agreements
or the Securities.
G. This Agreement has been, and [the Pooling and Servicing Agreement]
[the Sale and Servicing Agreement], the Purchase Agreement, [the
Indemnification Agreement and the Insurance Agreement] when executed and
delivered as contemplated hereby and thereby will have been, duly authorized,
executed and delivered by the Depositor, and this Agreement constitutes, and
[the Pooling and Servicing Agreement] [the Sale and Servicing Agreement], the
Purchase Agreement, [the Indemnification Agreement and the Insurance
Agreement,] when executed and delivered as contemplated herein, will
constitute, legal, valid and binding instruments enforceable against the
Depositor in accordance with their respective terms, subject as to
enforceability to (x) applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally, (y)
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of indemnity
under this Agreement, the Purchase Agreement, [the Indemnification Agreement
and the Insurance Agreement,] limitations of public policy under applicable
securities laws.
H. The execution, delivery and performance of the Agreements by the
Depositor and the consummation of the transactions contemplated hereby and
thereby, and the issuance and delivery of the Securities do not and will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Depositor
is a party, by which the Depositor is bound or to which any of the property or
assets of the Depositor or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the certificate of
formation or limited liability company agreement of the Depositor or any
statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Depositor or any of its properties or
assets.
I. [ ] are independent public accountants with respect to the
Depositor as required by the Securities Act and the Rules and Regulations.
J. The direction by the Depositor to the [Indenture] Trustee to
execute, authenticate, issue and deliver the Securities has been duly
authorized by the Depositor, and assuming the [Indenture] Trustee has been
duly authorized to do so, when executed, authenticated, issued and delivered
by the [Indenture] Trustee in accordance with [the Pooling and Servicing
Agreement] [the Indenture and the Trust Agreement], the Securities will be
validly issued and outstanding and will be entitled to the benefits provided
by [the Pooling and Servicing Agreement] [the Indenture and the Trust
Agreement].
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States is required for the issuance of the Class [ ] [Certificates]
[Notes] and the sale of the Class [ ] [Certificates] [Notes] to the
Underwriters, or the consummation by the Depositor of the other transactions
contemplated by the Agreements, except such consents, approvals,
authorizations, registrations or qualifications as may be required under State
securities or Blue Sky laws in connection with the purchase and distribution
of the Class [ ] [Certificates] [Notes] by the Underwriters or as have been
obtained.
L. At the time of execution and delivery of [the Pooling and Servicing
Agreement] [the Sale and Servicing Agreement and the Trust Agreement], the
Depositor will: (i) have equitable title to the interest in the Mortgage Loans
conveyed by the Seller, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively, "Liens");
(ii) not have assigned to any person (other than the [Owner] Trustee) any of
its right, title or interest in the Mortgage Loans, in the Purchase Agreement
or in [the Pooling and Servicing Agreement] [the Sale and Servicing
Agreement]; and (iii) have the power and authority to sell its interest in the
Mortgage Loans to the [Indenture] Trustee and to sell the Class [ ]
[Certificates] [Notes] to the Underwriters. Upon execution and delivery of
[the Pooling and Servicing Agreement] [the Sale and Servicing Agreement] by
the [Indenture] Trustee, the [Indenture] Trustee will have acquired beneficial
ownership of all of the Depositor's right, title and interest in and to the
Mortgage Loans. Upon delivery to the Underwriters of the Class [ ]
[Certificates] [Notes], the Underwriters will have good title to the Class [ ]
[Certificates] [Notes] free of any Liens.
M. Neither the Depositor nor the Trust created by [the Pooling and
Servicing Agreement] [the Trust Agreement] is an "investment company" within
the meaning of such term under the Investment Company Act of 1940 (the "1940
Act") and the rules and regulations of the Commission thereunder.
N. At the Closing Date, the Securities and [the Pooling and Servicing
Agreement] [the Sale and Servicing Agreement] and the Purchase Agreement will
conform in all material respects to the descriptions thereof contained in the
Prospectus.
O. At the Closing Date, the Class [ ] [Certificates] [Notes] shall
have been rated in the [highest] rating category by at least two nationally
recognized rating agencies.
P. Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of the Agreements and the Securities have
been paid or will be paid at or prior to the Closing Date.
Any certificate signed by an officer of the Depositor and delivered to
the Underwriters or counsel for the Underwriters in connection with an
offering of the Class [ ] [Certificates] [Notes] shall be deemed, and shall
state that it is, a representation and warranty as to the matters covered
thereby to each person to whom the representations and warranties in this
Section I are made.
Section II. Purchase and Sale. The commitment of the Underwriters to
purchase the Class [ ] [Certificates] [Notes] pursuant to this Agreement shall
be deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the satisfaction of the terms and
conditions set forth herein. The Depositor agrees to instruct the [Indenture]
Trustee to issue and agrees to sell to the Underwriters, and the Underwriters
agree (except as provided in Sections X and XI hereof) to purchase from the
Depositor, the Class [ ] [Certificates] [Notes] in the principal amounts set
forth opposite their names and at the purchase price set forth in Schedule A.
Section III. Delivery and Payment. Delivery of and payment for the
Class [ ] [Certificates] [Notes] to be purchased by the Underwriters shall be
made at the offices of Xxxxx & Xxxx LLP, 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000, or at such other place as shall be agreed upon by the Underwriters and
the Depositor at [ ] a.m. Eastern time on [ ] or at such other time or date as
shall be agreed upon in writing by the Underwriters and the Depositor (such
date being referred to as the "Closing Date"). Payment shall be made to the
Depositor by wire transfer of same day funds payable to the account of the
Depositor. Delivery of the Class [ ] [Certificates] [Notes] shall be made to
the Underwriters for the account of the Underwriters against payment of the
purchase price thereof. The Class [ ] [Certificates] [Notes] shall be in such
denominations and registered in such names as the Underwriter may request in
writing at least two business days prior to the Closing Date. The Class [ ]
[Certificates] [Notes] will be made available for examination by the
Underwriters no later than [ ] p.m. Eastern time on the first business day
prior to the Closing Date.
Section IV. Offering by the Underwriters. It is understood that,
subject to the terms and conditions hereof, the Underwriters propose to offer
the Class [ ] [Certificates] [Notes] for sale to the public as set forth in
the Prospectus.
Section V. Covenants of the Depositor. The Depositor agrees as
follows:
A. To prepare the Prospectus in a form approved by the Underwriters
and to file such Prospectus pursuant to Rule 424(b) under the Securities Act
not later than the Commission's close of business on the second business day
following the execution and delivery of this Agreement; to make no further
amendment or any supplement to the Registration Statement or to the Prospectus
prior to the Closing Date except as permitted herein; to advise the
Underwriters, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed and
to furnish the Underwriters with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be filed by the
Depositor with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and, for so long as
the delivery of a prospectus is required in connection with the offering or
sale of the Class [ ] [Certificates] [Notes], to promptly advise the
Underwriters of its receipt of notice of the issuance by the Commission of any
stop order or of: (i) any order preventing or suspending the use of the
Prospectus; (ii) the suspension of the qualification of the Class [ ]
[Certificates] [Notes] for offering or sale in any jurisdiction; (iii) the
initiation of or threat of any proceeding for any such purpose; (iv) any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information. In the
event of the issuance of any stop order or of any order preventing or
suspending the use of the Prospectus or suspending any such qualification, the
Depositor promptly shall use its best efforts to obtain the withdrawal of such
order by the Commission.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case including exhibits); (ii)
the Prospectus and any amended or supplemented Prospectus; and (iii) any
document incorporated by reference in the Prospectus (including exhibits
thereto). If the delivery of a prospectus is required at any time prior to the
expiration of nine months after the Effective Time in connection with the
offering or sale of the Class [ ] [Certificates] [Notes], and if at such time
any events shall have occurred 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 any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or the
Exchange Act, the Depositor shall notify the Underwriters and, upon the
Underwriters' request, shall file such document and prepare and furnish
without charge to the Underwriters and to any dealer in securities as many
copies as the Underwriters may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which corrects such
statement or omission or effects such compliance, and in case the Underwriters
are required to deliver a Prospectus in connection with sales of any of the
Class [ ] [Certificates] [Notes] at any time nine months or more after the
Effective Time, upon the request of the Underwriters but at its expense, the
Depositor shall prepare and deliver to the Underwriters as many copies as the
Underwriters may reasonably request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Securities Act.
D. To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Depositor or the Underwriters, be required by
the Securities Act or requested by the Commission.
E. Prior to filing with the Commission any (i) supplement to the
Prospectus, or document incorporated by reference in the Prospectus, or (ii)
Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a
copy thereof to the Underwriters and counsel for the Underwriters and obtain
the consent of the Underwriters to the filing.
F. To make generally available to holders of the Class [ ]
[Certificates] [Notes] as soon as practicable, but in any event not later than
90 days after the close of the period covered thereby, a statement of earnings
of the Trust (which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option of the
Depositor, Rule 158) and covering a period of at least twelve consecutive
months beginning not later than the first day of the first fiscal quarter
following the Closing Date.
G. To use its best efforts, in cooperation with the Underwriters, to
qualify the Class [ ] [Certificates] [Notes] for offering and sale under the
applicable securities laws of such states and other jurisdictions of the
United States as the Underwriters may designate, and maintain or cause to be
maintained such qualifications in effect for as long as may be required for
the distribution of the Class [ ] [Certificates] [Notes]. The Depositor will
file or cause the filing of such statements and reports as may be required by
the laws of each jurisdiction in which the Class [ ] [Certificates] [Notes]
have been so qualified.
H. So long as the Class [ ] [Certificates] [Notes] shall be
outstanding, to deliver to the Underwriters as soon as such statements are
furnished to the [Indenture] Trustee: (i) the annual statement as to
compliance delivered to the [Indenture] Trustee pursuant to Section [5.16] of
[the Pooling and Servicing Agreement] [the Sale and Servicing Agreement]; (ii)
the annual statement of a firm of independent public accountants furnished to
the [Indenture] Trustee pursuant to Section [5.17] of [the Pooling and
Servicing Agreement] [the Sale and Servicing Agreement]; and (iii) the
[Indenture] Trustee Remittance Report furnished to the Securityholders
pursuant to Section [6.07] of [the Pooling and Servicing Agreement] [the Sale
and Servicing Agreement].
I. To apply the net proceeds from the sale of the Class [ ]
[Certificates] [Notes] in the manner set forth in the Prospectus.
Section VI. Conditions to the Underwriters' Obligations. The
obligation of the Underwriters to purchase the Class [ ] [Certificates]
[Notes] pursuant to this Agreement is subject to: (i) the accuracy on and as
of the Closing Date of the representations and warranties on the part of the
Depositor herein contained; (ii) the performance by the Depositor of all of
its obligations hereunder; and (iii) the following conditions as of the
Closing Date:
A. The Underwriters shall have received confirmation of the
effectiveness of the Registration Statement. No stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission. Any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus shall
have been complied with.
B. The Underwriters shall not have discovered and disclosed to the
Depositor on or prior to the Closing Date that the Registration Statement or
the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact or omits to state a fact which, in the opinion of [ ],
____ counsel ____ for the ____ Underwriters, ____ is ____ material ____ and is
required to be stated therein or is necessary to make the statements therein
not misleading.
C. All corporate proceedings and other legal matters relating to the
authorization, form and validity of the Agreements the Class [ ]
[Certificates] [Notes], the Registration Statement and the Prospectus, and all
other legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to counsel for the
Underwriters, and the Depositor shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
X. Xxxxx & Wood LLP shall have furnished to the Underwriters their
written opinion, as counsel to the Depositor, addressed to the Underwriters
and dated the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that:
1. The conditions to the use by the Depositor of a registration
statement on Form S-3 under the Securities Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to
the Registration Statement and the Prospectus.
2. The Registration Statement and any amendments thereto have
become effective under the 1933 Act; to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn and 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 1933 Act and the rules and regulations thereunder.
3. To the best of such counsel's knowledge, there are no material
contracts, indentures or other documents of a character required to be
described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
4. The statements in the base Prospectus under the headings
["Legal Aspects of Loans", "ERISA Considerations" and "Federal Income
Tax Considerations",] and the statements in the Prospectus Supplement
under the headings ["Summary--Federal Income Tax Considerations", and
"--ERISA Considerations", "Certain Federal Income Tax Considerations",
and "ERISA Considerations",] to the extent that they constitute
matters of federal law or legal conclusions with respect thereto, have
been reviewed by us and are correct in all material respects with
respect to those consequences or aspects that are discussed.
5. [The Pooling and Servicing Agreement conforms in all material
respects to the description thereof contained in the Prospectus and is
not required to be qualified under the Trust Indenture Act of 1939, as
amended, and the Trust is not required to be registered under the
Investment Company Act of 1940, as amended.]
6. [The Sale and Servicing Agreement and the Trust Agreement
conform in all material respects to the descriptions thereof contained
in the Prospectus Supplement and are not required to be qualified
under the Trust Indenture Act of 1939, as amended. The Indenture has
been duly qualified under the Trust Indenture Act of 1939, as
amended.]
7. Neither the Depositor nor the Trust is an "investment company"
or under the control of an "investment company" as such terms are
defined in the 1940 Act.
8. [The Trust as described in the Prospectus Supplement and the
Pooling and Servicing Agreement will qualify to be treated as a "real
estate mortgage investment conduit" (the "REMIC") as defined in the
Internal Revenue Code of 1986, as amended (the "Code"), the Class [ ]
Certificates will be treated as "regular interests" in the REMIC and
the Class [R] Certificates will be treated as the single class of
"residual interests" in the REMIC assuming: (i) an election is made to
treat the Trust 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.]
9. The Class [ ] [Certificates] [Notes] will, when issued,
conform to the description thereof contained in the Prospectus.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date, in form
and substance satisfactory to the Underwriters to the effect that no facts
have come to the attention of such counsel which lead them to believe that:
(a) the Registration Statement (other than the documents incorporated therein
by reference (including, without limitation, the Derived Information (as
defined below)) and the financial and statistical information contained
therein, as to which no opinion shall be given) at the time it became
effective, or at the date of such opinion, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (b) the Purchaser Information (as defined in the Purchase
Agreement) in the Prospectus (other than the information incorporated therein
by reference, including, without limitation, the Derived Information) and the
financial, statistical and numerical information contained therein, as to
which no opinion shall be expressed, 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.
E. The Underwriters shall have received the favorable opinion, dated
the Closing Date, of Xxxxx & Xxxx LLP, counsel for the Depositor, addressed to
the Depositor [and satisfactory to the Insurer,] [_____________] and
[_________] ("[ ]" and, together with [______________], the "Rating Agencies")
and the Underwriters, with respect to certain matters relating to the transfer
of the Mortgage Loans to the Trust, and such counsel shall have consented to
reliance on such opinion by the Rating Agencies as though such opinion had
been addressed to them.
F. The Underwriters shall have received the favorable opinion, dated
the Closing Date, of [_________________], counsel to the Seller, addressed to
the Depositor, [the Insurer and] the Underwriters and satisfactory to the
Rating Agencies, with respect to certain matters relating to the transfer of
the Mortgage Loans to the Depositor, and such counsel shall have consented to
reliance on such opinion by the Rating Agencies as though such opinion had
been addressed to them.
G. (a) [_______________], counsel to the Seller, shall have furnished
to the Underwriters its opinion, addressed to the Underwriters, the Depositor
[and the Insurer,] dated the Closing Date, in form and substance satisfactory
to the Underwriters, to the effect that:
1. [__________________] has been duly organized, is validly
existing as a [______________________] in good standing under the laws
of the [_______________] and has all requisite power and authority to
own its properties and carry on its business and to execute, deliver
and perform the Purchase Agreement, [the Insurance Agreement and the
Indemnification Agreement.]
2. Each of the Purchase Agreement, [the Pooling and Servicing
Agreement] [the Sale and Servicing Agreement], [the Insurance
Agreement and the Indemnification Agreement] has been duly authorized,
executed and delivered by [ _______________ ], and constitutes the
legal, valid and binding agreements of [ _______________ ].
3. No consent, approval, authorization or order of, registration
or filing with, or notice to, any court or governmental agency or body
is required under any state or federal statute or regulation
applicable to [ ] for the execution, delivery or performance by [ ]
of, or compliance by [ ] with, the Purchase Agreement, [the Pooling
and Servicing Agreement] [the Sale and Servicing Agreement], [the
Insurance Agreement and the Indemnification Agreement], except such as
may be required under the blue sky laws of any jurisdiction.
4. There is no action, suit, proceeding or investigation pending
or, to such counsel's knowledge, threatened against [ ] which, in such
counsel's judgement, either in any one instance or in the aggregate
would draw into question the validity or enforceability of [the
Insurance Agreement, the Indemnification Agreement] [the Pooling and
Servicing Agreement] [the Sale and Servicing Agreement], or the
Purchase Agreement or the Securities or of any action taken or to be
taken in connection with the transaction contemplated thereby, or
which would be likely to impair materially the ability of [ ] to
perform its obligations under the terms of [the Insurance Agreement,
the Indemnification Agreement] [the Pooling and Servicing Agreement]
[the Sale and Servicing Agreement], or the Purchase Agreement.
5. Neither the transfer of the Mortgage Loans as provided by the
Purchase Agreement nor the consummation of the transaction
contemplated by or the fulfillment of the terms of [the Insurance
Agreement, the Indemnification Agreement], [the Pooling and Servicing
Agreement] [the Sale and Servicing Agreement] and the Purchase
Agreement (i) will result in a breach of any term or provision of the
articles of association or by-laws of [ ], (ii) will result in a
breach, violation or acceleration of, or constitute a default under
the terms of, any indenture or other material agreement or instrument
to which [ ] is a party or by which it is bound or subject, or (iii)
will result in a material breach of any statute or regulation
presently applicable to [ ] or any order, writ, injunction or decree
of any court, governmental agency or regulatory body to which [ ] is
subject or by which its or its properties are bound.
(b) [________________], counsel to Servicer, shall have furnished to
the Underwriters their opinion addressed to the Underwriters, the Depositor
[and the Insurer], dated the Closing Date, in form and substance satisfactory
to the Underwriters, to the effect that:
1. [_____________] has been duly organized, is validly existing
as a [_______________ ] in good standing under the laws of the
[_________________] and has all requisite power and authority to own
its properties and carry on its business and to execute, deliver and
perform [the Pooling and Servicing Agreement] [the Sale and Servicing
Agreement] [and the Insurance Agreement.]
2. Each of [the Pooling and Servicing Agreement] [the Sale and
Servicing Agreement] [and the Insurance Agreement] has been duly
authorized, executed and delivered by [_______________], and
constitutes the legal, valid and binding agreements of
[_____________________].
3. No consent, approval, authorization or order of, registration
or filing with, or notice to, any court or governmental agency or body
is required under any state or federal statute or regulation
applicable to [____________] for the execution, delivery or
performance by [_______________] of, or compliance by [___________]
with, [the Pooling and Servicing Agreement] [the Sale and Servicing
Agreement] [and the Insurance Agreement], except such as may be
required under the blue sky laws of any jurisdiction.
4. There is no action, suit, proceeding or investigation pending
or, to such counsel's knowledge, threatened against [____________]
which, in such counsel's judgement, either in any one instance or in
the aggregate would draw into question the validity or enforceability
of [the Pooling and Servicing Agreement] [the Sale and Servicing
Agreement] [or the Insurance Agreement] or the Securities or of any
action taken or to be taken in connection with the transaction
contemplated thereby, or which would be likely to impair materially
the ability of [___________ ] to perform its obligations under the
terms of [the Pooling and Servicing Agreement] [the Sale and Servicing
Agreement] [or the Insurance Agreement].
5. Neither the transfer of the Mortgage Loans as provided by the
Purchase Agreement nor the consummation of the transaction
contemplated by or the fulfillment of the terms of [the Pooling and
Servicing Agreement] [the Sale and Servicing Agreement] [and the
Insurance Agreement] (i) will result in a breach of any term or
provision of the articles of association or by-laws of [____________],
(ii) will result in a breach, violation or acceleration of, or
constitute a default under the terms of, any indenture or other
material agreement or instrument to which [___________] is a party or
by which it is bound or subject, or (iii) will result in a material
breach of any statute or regulation presently applicable to
[_____________] or any order, writ, injunction or decree of any court,
governmental agency or regulatory body to which [______________] is
subject or by which its or its properties are bound.
Such counsel shall also have furnished to the
Underwriters a written statement, addressed to the Underwriters and
dated the Closing Date, in form and substance satisfactory to the
Underwriters to the effect that no facts have come to the attention of
such counsel which lead them to believe that the information in the
Prospectus Supplement under the headings ["SUMMARY--The Mortgage
Loans," "--Servicer," and "--Servicing," and "THE SERVICER,"], other
than the financial, statistical and numerical information contained
therein, as to which no opinion shall be expressed, contained or
contains an untrue statement or 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.
H. Counsel for the Depositor shall have furnished to the Underwriters
its written opinion, addressed to the Underwriters and dated the Closing Date,
in form and substance satisfactory to the Underwriters, to the effect that:
1. The Depositor has been duly incorporated and is validly
existing as a limited liability company in good standing under the
laws of Delaware, and has all power and authority necessary to own or
hold its properties and to conduct the business in which it is engaged
and to enter into and perform its obligations under the Agreements,
and to cause the issuance of the Securities.
2. Each of the Agreements has been duly authorized, executed and
delivered by the Depositor and, assuming the due authorization,
execution and delivery of the Agreements by the other parties thereto,
each of the Agreements constitutes a valid and binding obligation of
the Depositor, enforceable against the Depositor in accordance with
their respective terms.
3. The execution, delivery and performance of the Agreements by
the Depositor, and the consummation of the transactions contemplated
thereby, do not and will not result in a material breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Depositor is a party or by which
the Depositor is bound or to which any of the property or assets of
the Depositor is subject, nor will such actions result in any
violation of the provisions of the certificate of formation or limited
liability company agreement of the Depositor or, to such counsel's
knowledge without independent investigation, any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Depositor or any of its properties or assets
(except for such conflicts, breaches, violations and defaults as would
not have a material adverse effect on the ability of the Depositor to
perform its obligations under the Agreements).
4. To such counsel's knowledge without any independent
investigation, no consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body of the United States or any other jurisdiction is
required for the issuance of the Securities and the sale of the Class
[ ] [Certificates] [Notes] to the Underwriters, or the consummation by
the Depositor of the other transactions contemplated by the
Agreements, except such consents, approvals, authorizations,
registrations or qualifications as (a) may be required under State
securities or Blue Sky laws, (b) have been previously obtained or (c)
the failure of which to obtain would not have a material adverse
effect on the performance by the Depositor of its obligations under,
or the validity or enforceability of, the Agreements.
5. There are no actions, proceedings or investigations pending
before or, to my knowledge, threatened by any court, administrative
agency or other tribunal to which the Depositor is a party or of which
any of its properties is the subject: (a) which if determined
adversely to the Depositor would have a material adverse effect on the
business, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of the Agreements or the
Securities; (c) seeking to prevent the issuance of the Securities or
the consummation by the Depositor of any of the transactions
contemplated by the Agreements, as the case may be; (d) which might
materially and adversely affect the performance by the Depositor of
its obligations under, or the validity or enforceability of, the
Agreements.
I. The Underwriters shall have received the favorable opinion of
counsel to the [Indenture] Trustee, dated the Closing Date, addressed to the
Underwriters and in form and scope satisfactory to counsel to the
Underwriters, to the effect that:
1. The [Indenture] Trustee is a [___________________] corporation
with trust powers, duly organized and validly existing in good
standing under the laws of the United States, and has all requisite
power and authority to enter into [the Pooling and Servicing
Agreement] [the Sale and Servicing Agreement, the Indenture, the
Administration Agreement] [and the Insurance Agreement] and perform
its obligations thereunder.
2. [The Pooling and Servicing Agreement] [the Sale and Servicing
Agreement, the Indenture, the Administration Agreement] [and the
Insurance Agreement] have been duly authorized, executed and delivered
by the [Indenture] Trustee and constitute the legal, valid and binding
obligations of the [Indenture] Trustee, enforceable against the
[Indenture] Trustee in accordance with their respective terms, subject
to bankruptcy laws and other similar laws of general application
affecting creditors' rights and subject to the application of the
rules of equity, including those respecting the availability of
specific performance.
3. No approval, authorization or other action by, or filing with,
any court or governmental agency or authority having jurisdiction over
the banking or trust powers of the [Indenture] Trustee is required in
connection with its execution and delivery of [the Pooling and
Servicing Agreement] [the Sale and Servicing Agreement, the Indenture,
the Administration Agreement] [and the Insurance Agreement] according
to their terms.
4. The execution, delivery and performance of [the Pooling and
Servicing Agreement] [the Sale and Servicing Agreement, the Indenture,
the Administration Agreement] [and the Insurance Agreement] do not
result in a violation of (a) any law or regulation of the United
States governing the banking or trust powers of the [Indenture]
Trustee or any order, writ, judgement or decree of any court,
arbitrator or governmental authority applicable to the [Indenture]
Trustee or any of its assets or (b) the articles of association or
by-laws of the [Indenture] Trustee.
5. The Securities have been authenticated by the [Indenture]
Trustee in accordance with [the Pooling and Servicing Agreement]
[Indenture].
6. There are no actions, proceedings or investigations pending or
threatened against or affecting the [Indenture] Trustee before or by
any court, arbitrator, administrative agency or other governmental
authority which, if decided adversely to the [Indenture] Trustee,
would materially and adversely affect the ability of the [Indenture]
Trustee to carry out the transactions contemplated in [the Pooling and
Servicing Agreement] [the Sale and Servicing Agreement, the Indenture,
the Administration Agreement] or [the Insurance Agreement.]
J. The Underwriters shall have received the favorable opinion or
opinions, dated the date of the Closing Date, of counsel for the Underwriters,
with respect to the issue and sale of the Class [ ] [Certificates] [Notes],
the Registration Statement, this Agreement, the Prospectus and such other
related matters as the Underwriters may reasonably require.
K. [The Underwriters shall have received the favorable opinion dated
the Closing Date of counsel to the Insurer ("Insurer Counsel") in form and
scope satisfactory to counsel for the Underwriters, to the effect that:
1. The Insurer is a stock insurance corporation, duly
incorporated and validly existing under the laws of the State of
[_______________] and is licensed and has the power and authority to
issue the Policy under the laws of the State of
[______________________].
2. The Policy has been duly authorized, executed and delivered
and is the valid and binding obligation of the Insurer enforceable in
accordance with its terms, except that the enforcement of the Policy
may be limited by laws relating to bankruptcy, insolvency,
reorganization, moratorium, receivership and other similar laws
affecting creditors' rights generally and by general principles of
equity (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law).
3. The Insurer has the power and authority to perform its
obligations under the Insurance Agreement and the Indemnification
Agreement and the Insurance Agreement and the Indemnification
Agreement have been duly executed and are the valid and binding
obligations of the Insurer, each enforceable in accordance with its
terms, except that the enforcement of the Insurance Agreement and the
Indemnification Agreement may be limited by laws relating to
bankruptcy, insolvency, reorganization, moratorium, receivership and
other similar laws affecting creditors' rights generally and by
general principles of equity and, in the case of the Indemnification
Agreement, subject to principles of public policy limiting the right
to enforce the indemnification provisions contained therein insofar as
such provisions relate to indemnification for liabilities arising
under the securities laws.
4. No consent, approval, authorization, filing or order of any
state or federal court or governmental agency or body is required on
the part of the Insurer the lack of which would adversely affect the
validity and enforceability of the Policy.
5. The execution, delivery and performance by the Insurer of its
obligations under the Policy do not contravene any provision of the
charter or by-laws of the Insurer. The execution, delivery and
performance by the Insurer of its obligations under the Policy do not,
to the extent that either of the following would affect the validity
or enforceability of the Policy, (a) contravene any law or government
regulation or order presently binding on the Insurer or (b) contravene
any provision of or constitute a default under any indenture, contract
or other instrument to which the Insurer is a party or by which it is
bound.
6. To the extent that the Policy constitutes a security within
the meaning of Section 2(l) of the Securities Act, it is a security
exempt from the registration requirements of the Securities Act.
7. The description of the Policy in the Prospectus Supplement
under the headings ["The Insurer" and "Description of the
Securities--The Policy"] is, to the extent that such description
constitutes statements of matters of law or legal conclusions with
respect thereto, accurate in all material respects; provided, however,
that no opinion need be expressed as to the accuracy of any financial
statements or other financial or statistical data contained in or
omitted from the Prospectus Supplement, including such statements or
other information included under such caption or in any appendix to
the Prospectus Supplement.]
L. [The Underwriters shall have received the favorable opinion, dated
the Closing Date of [ _______________________ ], counsel to the Owner Trustee,
with respect to the issue and sale of the Class [ ] Notes and the Ownership
Interests, the status of the Trust, the Trust Agreement, perfections of
applicable security interests and such other matters as the Underwriters may
reasonably require.]
M. The Depositor shall have furnished to the Underwriters. a
certificate, dated the Closing Date, of its Chief Executive Officer, its
President, or a Vice President stating that:
1. The representations and warranties of the Depositor in Section
I of this Agreement are true and correct as of the Closing Date; and
the Depositor has complied with all its agreements contained herein.
2. Such person has carefully examined the Registration Statement
and the Prospectus and, in his opinion (x) as of the Effective Date,
the Registration Statement and Prospectus did not include an untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (y) since the Effective Date no event has
occurred which should have been set forth in a supplement or amendment
to the Registration Statement or the Prospectus.
N. The [Indenture] Trustee shall have furnished to the Underwriters a
certificate of the [Indenture] Trustee, signed by one or more duly authorized
officers of the [Indenture] Trustee, dated the Closing Date, as to the due
authorization, execution and delivery of [the Pooling and Servicing Agreement]
[the Sale and Servicing Agreement, Indenture] [and the Insurance Agreement] by
the [Indenture] Trustee and the acceptance by the [Indenture] Trustee of the
trusts created hereby and the due execution, authentication and delivery of
the Securities by the [Indenture] Trustee under [the Pooling and Servicing
Agreement] [Indenture] and such other matters as the Underwriters shall
reasonably request.
O. [The Policy shall have been issued by the Insurer and shall have
been duly authenticated by an authorized agent of the Insurer, if so required
under applicable state law or regulations.]
P. The Class [____] [Certificates] [Notes] shall have been rated
"[_____]" by [__________________] and "[____]" by [______________].
Q. The Underwriters shall have received at or before the Closing Date,
from [________________], letters, dated as of the date of this Agreement,
satisfactory in form and content (the "Initial Letters") and bring-down
letters dated as of the Closing Date, (A) confirming that they are independent
public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, (B) stating
the conclusions and findings of such firm with respect to the financial
information and other matters covered by its letter, and (C) in the case of
the bring-down letters, confirming in all material respects the conclusions
and findings set forth in the Initial Letters.
R. Prior to the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Class [ ] [Certificates] [Notes] as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of any of
the representations and warranties, or the fulfillment of any of the
conditions, herein contained, and all proceedings taken by the Depositor in
connection with the issuance and sale of the Class [ ] [Certificates] [Notes]
as herein contemplated shall be satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
S. Subsequent to the execution and delivery of this Agreement none of
the following shall have occurred: (i) trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the over-the-counter
market shall have been suspended or minimum prices shall have been established
on either of such exchanges or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having jurisdiction;
(ii) a banking moratorium shall have been declared by Federal or state
authorities; (iii) the United States shall have become engaged in hostilities,
there shall have been an escalation of hostilities involving the United States
or there shall have been a declaration of a national emergency or war by the
United States; or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or the effect
of international conditions on the financial markets of the United States
shall be such) as to make it, in the judgment of the Underwriters, impractical
or inadvisable to proceed with the public offering or delivery of the Class [
] [Certificates] [Notes] on the terms and in the manner contemplated in the
Prospectus.
If any condition specified in this Section VI shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the Depositor 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 VII.
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 Underwriters.
Section VII. Payment of Expenses. As between the Depositor and the
Underwriters, the Depositor agrees to pay: (a) the costs incident to the
authorization, issuance, sale and delivery of the Class [ ] [Certificates]
[Notes] and any taxes payable in connection therewith; (b) the costs incident
to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs
of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), the Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus or any document incorporated by
reference therein, all as provided in this Agreement; (d) the costs of
reproducing and distributing this Agreement; (e) the fees and expenses of
qualifying the Class [ ] [Certificates] [Notes] under the securities laws of
the several jurisdictions as provided in Section V(G) hereof and of preparing,
printing and distributing a Blue Sky Memorandum and a Legal Investment Survey
(including related fees and expenses of counsel to the Underwriters); (f) any
fees charged by securities rating services for rating the Class [ ]
[Certificates] [Notes]; and (g) all other costs and expenses incident to the
performance of the obligations of the Depositor (including costs and expenses
of your counsel); provided that, except as provided in this Section VII, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Class [ ] [Certificates]
[Notes] which they may sell and the expenses of advertising any offering of
the Class [ ] [Certificates] [Notes] made by the Underwriters.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section VI, Section X or Section XI, the Depositor shall
reimburse the Underwriters for all reasonable out-of-pocket expenses,
including fees and disbursements of counsel to the Underwriters.
Section VIII. Indemnification and Contribution. A. The Depositor
agrees to indemnify and hold harmless the Underwriters and each person, if
any, who controls the Underwriters within the meaning of Section 15 of the
Securities Act from and against any and all loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases and
sales of the Class [ ] [Certificates] [Notes]), to which the Underwriters or
any such controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, (ii) the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, (iii) any
untrue statement or alleged untrue statement of a material fact contained in
the Prospectus or (iv) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and shall reimburse the Underwriters and each such
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by the Underwriters or such controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Depositor shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in the Prospectus or the Registration
Statement in reliance upon and in conformity with written information
furnished to the Depositor by or on behalf of the Underwriters specifically
for inclusion therein. The foregoing indemnity agreement is in addition to any
liability which the Depositor may otherwise have to the Underwriters or any
controlling person of the Underwriters.
B. Each Underwriter, severally, and not jointly, agrees to indemnify
and hold harmless the Depositor, each of its directors, each of its officers
who signed the Registration Statement, and each person, if any, who controls
the Depositor within the meaning of Section 15 of the Securities Act against
any and all loss, claim, damage or liability, or any action in respect
thereof, to which the Depositor or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, (ii) the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus or
(iv) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, but
in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was (i) made in reliance upon and in
conformity with written information furnished to the Depositor by or on behalf
of the Underwriters specifically for inclusion therein and (ii) in the Derived
Materials other than a misstatement or omission arising from a misstatement or
omission in the Seller-Provided Information, and shall reimburse the Depositor
and any such director, officer or controlling person for any legal or other
expenses reasonably incurred by the Depositor or any director, officer or
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which the Underwriters may otherwise have to the Depositor or any
such director, officer or controlling person.
C. Promptly after receipt by any indemnified party under this Section
VIII of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
any indemnifying party under this Section VIII, notify the indemnifying party
in writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section VIII except to the extent it
has been materially prejudiced by such failure and, provided, further, that
the failure to notify any indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section VIII.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section VIII for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if
such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of attorneys
(in addition to local counsel) at any time for all such indemnified parties,
which firm shall be designated in writing by the Underwriters, if the
indemnified parties under this Section VIII consist of the Underwriters or any
of its controlling persons, or by the Depositor, if the indemnified parties
under this Section VIII consist of the Depositor or any of the Depositor's
directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section VIII(A) and (B), shall use its best efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees
to indemnify and hold harmless any indemnified party from and against any loss
or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, 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.
D. Each Underwriter agrees to provide the Depositor no later than two
Business Days prior to which the Prospectus Supplement is required to be filed
pursuant to Rule 424 with a copy of its Derived Information for filing with
the Commission on Form 8-K.
E. Each Underwriter agrees, assuming all Seller-Provided Information
(as defined below) is accurate and complete in all material respects, to
indemnify and hold harmless the Depositor, each of the Depositor's officers
and directors and each person who controls the Depositor within the meaning of
Section 15 of the Securities Act against any and all losses, claims, damages
or liabilities, joint or several, to which they may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement of a material fact contained in the Derived Information
provided by either Underwriter, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by him, her or it in connection with investigating or
defending or preparing to defend any such loss, claim, damage, liability or
action as such expenses are incurred. The obligations of the Underwriters
under this Section VIII(E) shall be in addition to any liability which the
Underwriters may otherwise have.
The procedures set forth in Section VIII(C) shall be equally
applicable to this Section VIII(E).
F. If the indemnification provided for in this Section VIII shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section VIII(A), (B) or (E) in respect of any loss, claim, damage
or liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Depositor on the one hand and the Underwriters on the other
from the offering of the Class [ ] [Certificates] [Notes] or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or
if the indemnified party failed to give the notice required under Section
VIII(C), 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
Depositor on the one hand and the Underwriters on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations.
The relative benefits of the Underwriters and the Depositor shall be
deemed to be in such proportions that the each Underwriter is responsible for
its pro rata portion of such losses, liabilities, claims, damages and expenses
determined in accordance with the ratio that the excess of the aggregate
resale price received by such Underwriter for the Class [ ] [Certificates]
[Notes] over the purchase price paid to the Depositor by such Underwriter
(before deducting expenses) bears to the aggregate resale price received by
such Underwriter for the Class [ ] [Certificates] [Notes], and the Depositor
shall be responsible for the balance.
The relative fault of the Underwriters and the Depositor shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Depositor or by the Underwriters, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission and other
equitable considerations.
The Depositor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section VIII(F) were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section VIII(F) shall be deemed to include, for purposes of this Section
VIII(F), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
In no case shall the Underwriters be responsible for any amount in
excess of the difference between the purchase price paid to the Depositor by
the Underwriters and the aggregate resale price received by the Underwriters.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
G. For purposes of this Section VIII, the term "Derived Information"
means such portion, if any, of the information delivered to the Depositor
pursuant to Section VIII(D) for filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into
account information incorporated therein by reference; and
(ii) does not constitute Seller-Provided Information.
(iii) is of the type of information defined as Collateral term
sheets, Structural term sheets or Computational Materials (as such
terms are interpreted in the No-Action Letters (as defined below)).
"Seller-Provided Information" means the information contained on any computer
tape furnished to the Underwriters by [the Seller] concerning the assets
comprising the Trust.
The terms "Collateral term sheet" and "Structural term sheet" shall
have the respective meanings assigned to them in the February 13, 1995 letter
(the "PSA Letter") of Cleary, Gottlieb, Xxxxx & Xxxxxxxx on behalf of the
Public Securities Association (which letter, and the SEC staff's response
thereto, were publicly available February 17, 1995). The term "Collateral term
sheet" as used herein includes any subsequent Collateral term sheet that
reflects a substantive change in the information presented. The term
"Computational Materials" has the meaning assigned to it in the May 17, 1994
letter (the "Xxxxxx letter" and together with the PSA Letter, the "No-Action
Letters") of Xxxxx & Xxxx llp on behalf of Xxxxxx, Peabody & Co., Inc. (which
letter, and the SEC staff's response thereto, were publicly available May 20,
1994).
H. The Underwriters confirm that the information set forth (i) in the
[________] paragraph on the cover page, (ii) in the [___________] paragraphs
under the caption "Underwriting" in the Prospectus Supplement and (iii) the
Derived Information is correct and constitutes the only information furnished
in writing to the Depositor by or on behalf of the Underwriters specifically
for inclusion in the Registration Statement and the Prospectus.
Section IX. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Depositor submitted
pursuant hereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or
controlling persons thereof, or by or on behalf of the Depositor and shall
survive delivery of any Class [ ] [Certificates] [Notes] to the Underwriters.
Section X. Default by One of the Underwriters. If one of the
Underwriters participating in the public offering of the Class [ ]
[Certificates] [Notes] shall fail at the Closing Date to purchase the Class [
] [Certificates] [Notes] which it is obligated to purchase hereunder (the
"Defaulted Securities"), then the non-defaulting Underwriter shall have the
right, within 24 hours thereafter, to purchase all, but not less than all, of
the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, the non-defaulting Underwriters have not
completed such arrangements within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Class [ ] [Certificates]
[Notes] to be purchased pursuant to this Agreement, the non-defaulting
Underwriters shall be obligated to purchase the full amount thereof, or
(ii) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Class [ ] [Certificates] [Notes]
to be purchased pursuant to this Agreement, this Agreement shall terminate,
without any liability on the part of the non-defaulting Underwriters.
No action taken pursuant to this Section X shall relieve a defaulting
Underwriter from the liability with respect to any default of such Underwriter
under this Agreement.
In the event of a default by any Underwriter as set forth in this
Section X, each of the non-defaulting Underwriters and the Depositor shall
have the right to postpone the Closing Date for a period not exceeding five
Business Days in order that any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements may be effected.
Section XI. Termination of Agreement. The Underwriters may terminate
this Agreement immediately upon notice to the Depositor, at any time at or
prior to the Closing Date if any of the events or conditions described in
Section VI(S) of this Agreement shall occur and be continuing. In the event of
any such termination, the covenant set forth in Section V(D), the provisions
of Section VII, the indemnity agreement set forth in Section VIII, and the
provisions of Sections IX and XIII shall remain in effect.
Section XII. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
A. if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to [___________________], [________________],
Attention: [________________________].
B. if to the Depositor, shall be delivered or sent by mail, telex or
facsimile transmission to Finance America Securities, LLC, 00000 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxx, Attention: [_________________________].
Section XIII. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters
and the Depositor, and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that the representations, warranties, indemnities and agreements
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control the Underwriters within the meaning of
Section 15 of the Securities Act, and for the benefit of directors of the
Depositor, officers of the Depositor who have signed the Registration
Statement and any person controlling the Depositor within the meaning of
Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section XIII, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
Section XIV. Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on behalf of them, respectively, pursuant to
this Agreement, shall survive the delivery of and payment for the Class [ ]
[Certificates] [Notes] and shall remain in full force and effect, regardless
of any investigation made by or on behalf of any of them or any person
controlling any of them.
Section XV. Definition of the Term "Business Day". For purposes of
this Agreement, "Business Day" means any day on which the New York Stock
Exchange, Inc. is open for trading.
Section XVI. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section XVII. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
Section XVIII. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the
Depositor and the Underwriter, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
FINANCE AMERICA SECURITIES, LLC
By: ______________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
[ ]
By: ___________________________
Name:
Title:
[ ]
By: ___________________________
Name:
Title:
[ ]
By: ___________________________
Name:
Title:
SCHEDULE A
Initial Class Principal Balance and Purchase Price
of Class [ ] [Certificates] [Notes] Purchased by Underwriters
Class [ ] [Certificates] [Notes]
Underwriters Principal Purchase Price
[ ] $[ ] [ ]%
[ ] $[ ]
[ ] $[ ]
Total $[ ]
Class [ ] [Certificates] [Notes]
Underwriters Principal Purchase Price
[ ] $[ ] [ ]%
[ ] $[ ]
[ ] $[ ]
Total $[ ]
