EXHIBIT 1.1
JV CAPITAL TRUST
Residential Mortgage Pass-Through Certificates, Series 19__-__
UNDERWRITING AGREEMENT
[Lead Underwriter's name and address]
Ladies and Gentlemen:
JV Capital Trust (the "Depositor") is a special purpose business trust
formed under the laws of the State of Delaware and is wholly-owned by JV
Mortgage Capital, L.P. ("JVMC"), a Delaware limited partnership. The Depositor
has authorized the issuance and sale of Residential Mortgage Pass-Through
Certificates, Series 19__-__, consisting of (i) _________________ (the "Class A
Certificates" or the "Offered Certificates"), (ii) ______________ (the "Class B
Certificates" or the "Subordinate Certificates") and (iii) _________________
(the "Residual Certificates" and, together with the Class A Certificates and the
Subordinate Certificates, the "Certificates"). Each Class of the Certificates
evidences interests in a trust (the "Trust Fund") comprised primarily of first
[and second] lien fixed-rate mortgage loans (the "Mortgage Loans").
Only the Offered Certificates are being purchased by _____________________
and _____________________________________ ( ______ and, together with _____, 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
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accordance with Section 10 of this Agreement.
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement"), dated as of _________________ __, 19__,
among the Depositor, ___________________________, as master servicer (the
"Master Servicer"), and ______________________, as trustee and document
custodian (the "Trustee"). The Certificates will evidence fractional undivided
interests in the Trust Fund. The assets of the Trust Fund will include, among
other things, the Mortgage Loans conveyed to the Trust Fund on _____ __, 19__,
and such amounts as may be held by the Trustee in any accounts held by the
Trustee for Trust Fund. The aggregate undivided interest in the Trust Fund
represented by the Offered Certificates initially will be equal to $___________
of principal, which represents _____% of the actual principal balances of the
Mortgage Loans as of _____ __, 19__ (the "Cut-Off Date").
One or more elections will be made to treat certain segregated pools of
assets of the Trust Fund as "real estate mortgage investment conduits" (each, a
"REMIC") for federal income tax purposes. The Certificates (other than the Class
R Certificates) will constitute "regular interests" in a REMIC, and the Class R
Certificates will constitute "residual interests" in a REMIC.
The Offered Certificates are more fully described in the Registration
Statement (defined below) 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.
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Simultaneously with the execution of the Pooling and Servicing Agreement,
the Depositor will enter into a mortgage loan purchase agreement (the "Purchase
Agreement") with JVMC, seller of the Mortgage Loans, pursuant to which JVMC 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.
Section 1. Representations and Warranties of the Depositor
The Depositor represents and warrants to, and agrees with the Underwriters
that:
(a) Registration Statement on Form S-3 (No. 333-____), as amended, has
(i) been prepared by the Depositor in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations (the "Rules and Regulations") of the United States Securities and
Exchange Commission (the "Commission") thereunder and (ii) been filed with the
Commission under the Securities Act and 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 the final
prospectus, dated _____ __, 19__, as first supplemented by a prospectus
supplement, dated _____ __, 19__ (the "Prospectus Supplement"), relating to the
Offered Certificates, 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, as amended (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 of the Depositor filed with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act after the Effective Time that is incorporated by
reference in the Registration Statement. The Commission has not issued, and the
Depositor has not received any notification that the Commission intends to issue
any order preventing or suspending the use of 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 Closing Date (defined below). 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 (A) has provided to the Depositor
Collateral Term Sheets (defined below) 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 (B) 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
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Form 8-K containing such Structural Term Sheets 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 (i) Derived Information (as
defined below) or (ii) 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. The parties hereto acknowledge that the only information
provided by the Underwriters of the type referred to in clause (ii) of the
preceding sentence is that information described in Section 8(h).
(c) 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.
(d) The Depositor is a business trust duly formed, validly existing
and in good standing under the laws of the State of Delaware and has all
requisite power and authority (trust and other) 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 this Agreement, the Pooling and Servicing
Agreement and the Purchase Agreement, and to cause the Certificates to be
issued.
(e) There are no actions, proceedings or investigations pending before
or, to the knowledge of the Depositor, 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 (i) which if determined adversely to the Depositor
would have a material adverse effect on the business or financial condition of
the Depositor, (ii) asserting the invalidity of this Agreement, the Pooling and
Servicing Agreement, the Purchase Agreement or the Certificates, (iii) seeking
to prevent the issuance of the Certificates or the consummation by the Depositor
of any of the transactions contemplated by the Pooling and Servicing Agreement,
the Purchase Agreement or this Agreement, as the case may be, or (iv) which
might materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, the Pooling and
Servicing Agreement, the Purchase Agreement, this Agreement or the Certificates.
(f) This Agreement has been, and the Pooling and Servicing Agreement
and the Purchase Agreement when executed and delivered as contemplated hereby
and thereby will have
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been, duly authorized, executed and delivered by the Depositor, and this
Agreement constitutes, and the Pooling and Servicing Agreement and the Purchase
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 (i)
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, (ii) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law), and (iii) with respect to rights of indemnity under this Agreement and the
Purchase Agreement, limitations of public policy under applicable securities
laws.
(g) The execution, delivery and performance of this Agreement, the
Pooling and Servicing Agreement and the Purchase Agreement by the Depositor and
the consummation of the transactions contemplated hereby and thereby, and the
issuance and delivery of the Certificates 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, the trust agreement pursuant to which the Depositor
is formed, or 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 is
subject, nor will such actions result in any violation of the provisions of 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.
(h) The direction by the Depositor to the Trustee to execute,
authenticate, issue and deliver the Certificates has been duly authorized by the
Depositor, and assuming the Trustee has been duly authorized to do so, when
executed, authenticated, issued and delivered by the Trustee in accordance with
the Pooling and Servicing Agreement, the Certificates will be validly issued and
outstanding and will be entitled to the benefits provided by the Pooling and
Servicing Agreement.
(i) 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 Certificates and the sale of the
Certificates to the Underwriters, or the consummation by the Depositor of the
other transactions contemplated by this Agreement, the Pooling and Servicing
Agreement and the Purchase Agreement, except such consents, approvals,
authorizations, registrations or qualifications as may be required under the
Securities Act or state securities or Blue Sky laws in connection with the
purchase and distribution of the Certificates by the Underwriters or as have
been completed or obtained.
(j) The Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Prospectus, and the Depositor has not received notice
of any proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which if decided adversely to the
Depositor would, singly or in the aggregate, materially and adversely affect the
conduct of its business, operations or financial condition.
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(k) At the time of execution and delivery of the Pooling and Servicing
Agreement, the Depositor will: (i) have good title to the interest in the
Mortgage Loans conveyed by JVMC, free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest (collectively,
"Liens"); (ii) not have assigned to any person (other than the Trustee) any of
its right, title or interest in the Mortgage Loans, the Purchase Agreement or
the Pooling and Servicing Agreement; and (iii) have the power and authority to
sell its interest in the Mortgage Loans to the Trustee and to sell the Offered
Certificates to the Underwriters. Upon execution and delivery of the Pooling
and Servicing Agreement by the Trustee and any related instruments of transfer
or assignment by the Depositor (except as permitted in the Pooling and Servicing
Agreement), the 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 Offered Certificates, the Underwriters will
have good title to the Offered Certificates free of any Liens.
(l) As of the Cut-Off Date, the Mortgage Loans will meet the eligibility
criteria described in the Prospectus and will conform to the descriptions
thereof contained in the Prospectus.
(m) The Trust Fund created by the Pooling and Servicing Agreement is
not an "investment company" within the meaning of such term under the Investment
Company Act of 1940, as amended (the "1940 Act"), and the rules and regulations
of the Commission thereunder.
(n) At the Closing Date, the Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the descriptions
thereof contained in the Prospectus.
(o) [At the Closing Date, the Offered Certificates so designated in
the Prospectus will be "mortgage related securities", as defined in Section
3(a)(41) of the Exchange Act.]
(p) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement, the Purchase Agreement and the Certificates have been paid
or will be paid at or prior to the Closing Date.
(q) At the Closing Date, each of the representations and warranties of
the Depositor set forth in the Pooling and Servicing Agreement will be true and
correct in all material respects.
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 Certificates shall be deemed to be a representation and warranty as to
the matters covered thereby to each person to whom the representations and
warranties in this Section 1 are made.
Section 2. Purchase and Sale
The commitment of the Underwriters to purchase the Offered Certificates
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 Trustee to issue and agrees to sell to the Underwriters, and the
Underwriters agree (except as provided in Sections 10 and 11 hereof) to
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purchase from the Depositor [each Class of] the Offered Certificates at the
purchase price set forth in Schedule A.
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Section 3. Delivery and Payment
Delivery of and payment for the Certificates to be purchased by the
Underwriters shall be made at the offices of Cadwalader, Xxxxxxxxxx & Xxxx, 000
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as shall be agreed
upon by the Underwriters and the Depositor, at ___ A.M. on ____ __, 19__, 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 Certificates shall be made to the
Underwriters for the account of the Underwriters against payment of the purchase
price thereof. The Offered Certificates (other than the Residual Certificates)
shall be delivered in book-entry form through The Depository Trust Company in
such denominations and registered in such names as the Underwriters may request
in writing at least two business days prior to the Closing Date. The Residual
Certificates shall be registered in such names and delivered to such persons as
the Underwriters may request in writing at least two Business Days prior to the
Closing Date. The Offered Certificates will be made available for examination by
the Underwriters on the first business day prior to the Closing Date.
Section 4. Offering by the Underwriters
It is understood that, subject to the terms and conditions hereof, the
Underwriters propose to offer the Offered Certificates for sale to the public as
set forth in the Prospectus.
Section 5. 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 Offered Certificates, 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 Offered Certificates for the offering or sale in any
jurisdiction; (iii) the initiation of or threat of any proceeding for any such
purpose; or (iv) any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus
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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 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 Offered
Certificates, 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
Offered Certificates 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.
(c) 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.
(d) 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 consult with
the Underwriters as to the necessity or desirability of such filing.
(e) To use its best efforts, in cooperation with the Underwriters, to
qualify the Offered Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
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 Offered Certificates. 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 Offered Certificates have been so qualified.
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(f) [So long as the Offered Certificates shall be outstanding, to
deliver to the Underwriters upon request: (i) the annual statement as to
compliance delivered to the Trustee pursuant to Section ____ of the Pooling and
Servicing Agreement, (ii) the annual statement of a firm of independent public
accountants furnished to the Trustee pursuant to Section ____ of the Pooling and
Servicing Agreement; and (iii) the monthly statement furnished to the
Certificateholders pursuant to Section ___ of the Pooling and Servicing
Agreement.]
(g) To apply the net proceeds from the sale of the Offered Certificates in
the manner set forth in the Prospectus.
Section 6. Conditions to the Underwriters' Obligations
The obligations of the Underwriters to purchase the Offered Certificates
pursuant to this Agreement are subject to: (1) the accuracy on and as of the
Closing Date of the representations and warranties on the part of the Depositor
herein contained; (2) the performance by the Depositor of all of its obligations
hereunder; and (3) the following conditions as of the Closing Date:
(a) The Underwriter 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) Neither Underwriter shall 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 this Agreement, the Pooling and Servicing
Agreement, the Purchase Agreement, the Offered Certificates, 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.
(d) Cadwalader, Wickersham, & Xxxx 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:
(i) The execution and delivery of this Agreement has been duly
authorized by the Depositor and this Agreement has been duly executed and
delivered by the Depositor.
(ii) The execution and delivery of the Pooling and Servicing
Agreement and the Purchase Agreement have been duly authorized by the
Depositor, and the Pooling and
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Servicing Agreement and the Purchase Agreement have been duly executed and
delivered by the Depositor and constitute legal, valid and binding
agreements of the Depositor, enforceable against the Depositor in
accordance with their terms subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, receivership or other
laws relating to creditors' rights generally and to general principles of
equity including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a proceeding
at law or in equity), and except that the enforcement of rights with
respect to indemnification and contribution obligations may be limited by
applicable law.
(iii) The Registration Statement (which for purposes of this opinion
shall not be deemed to include any exhibits filed therewith or any
documents incorporated therein by reference) is effective under the
Securities Act, and, to such counsel's knowledge, no stop order with
respect thereto has been issued by the Commission.
(iv) The Registration Statement, as of its effective date, and the
Prospectus and Prospectus Supplement, as of the dates thereof (in each
case, with the exception of any information incorporated by reference
therein and any numerical, financial, statistical and quantitative data
included therein, as to which such counsel need express no opinion),
appeared on their respective faces to be appropriately responsive in all
material respects to the requirements of the Securities Act and the rules
and regulations thereunder applicable to such documents as of the relevant
date.
(v) The statements in the Prospectus under the headings ["Summary
of Terms--Tax Status" and "--ERISA Considerations" and "ERISA Limitations"
and "Federal Income Tax Consequences,"] and the statements in the
Prospectus Supplement under the headings ["Summary of Terms of the
Certificates--Federal Income Tax Consequences" and "--ERISA
Considerations," "Federal Income Tax Consequences" and "ERISA
Considerations,"] to the extent such statements purport to summarize
matters of federal law or legal conclusions with respect thereto, have been
reviewed by such counsel and are correct in all material respects with
respects to those consequences or aspects that are discussed.
(vi) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust
Fund is not required to be registered under the 0000 Xxx.
(vii) The Trust Fund as described in the Prospectus Supplement and
the Pooling and Servicing Agreement will qualify as one or more "real
estate mortgage investment conduits" within the meaning of Section 860D of
the Internal Revenue Code of 1986, as amended (the "Code"), assuming: (A)
elections are made to treat the Trust Fund as one or more REMICs, (B)
compliance with the Pooling and Servicing Agreement and (C) compliance with
changes in the law, including any amendments to the Code or applicable
Treasury regulations thereunder.
[(viii) Assuming that the Offered Certificates are rated at the time
of issuance in one of the two highest rating categories by a nationally
recognized statistical rating
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organization, each such Offered Certificate at such time will be a
"mortgage related security" as such term is defined in Section 3(a)(41) of
the Securities Exchange Act of 1934, as amended.]
(ix) The Depositor is a business trust duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(x) 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 Certificates, and the
sale of the Certificates to the Underwriters, or the consummation by the
Depositor of the other transactions contemplated by this Agreement, the
Pooling and Servicing Agreement and the Purchase Agreement, except such
consents, approvals, authorizations, registrations or qualifications as may
be required under the Securities Act or state securities or Blue Sky laws
in connection with the purchase and distribution of the Certificates by the
Underwriters or as have been previously obtained.
(xi) The Certificates have been duly authorized by the Depositor
and, when the Certificates have been duly executed, authenticated and
delivered in the manner contemplated in the Pooling and Servicing Agreement
and paid for by the Underwriters pursuant to this Agreement, the
Certificates will be validly issued and outstanding and entitled to the
benefits provided by the Pooling and Servicing Agreement.
Such opinion (a) may express its reliance as to factual matters on
certificates of government and agency officials and the representations and
warranties made by, and on certificates or other documents furnished by officers
of, the parties to this Agreement, the Pooling and Servicing Agreement and the
Purchase Agreement, (b) may assume the due authorization, execution and delivery
of the instruments and documents referred to therein by the parties thereto
other than the Depositor, (c) may be qualified as an opinion only on the law of
the State of New York and Delaware, and the federal law of the United States of
America and (d) as to matters of Delaware law other than the General Corporation
Law of the State of Delaware, may express its reliance upon an opinion of
Delaware counsel satisfactory to the Underwriters.
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 (1) the documents incorporated therein by
reference (including, without limitation, any Structural Term Sheets, Collateral
Term Sheets and Computational Materials) and (2) 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 Prospectus (other than (1) the information incorporated
therein by reference (including, without, limitation, any Structural Term
Sheets, Collateral Term Sheets and Computational Materials) and (2) the
financial, statistical and numerical information contained therein, as to which
no opinion shall be expressed) contains an untrue statement of a material fact
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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 copies of any opinions of counsel
to the Depositor supplied to the rating organizations relating to certain
matters with respect to the Certificates. Any such opinions shall be dated the
Closing Date and addressed to the Underwriters or such counsel shall have
consented to reliance on such opinion by the Underwriters as though such opinion
had been addressed to each such party.
(f) JVMC shall have furnished to the Underwriters a written opinion of
counsel to JVMC (who may be an employee of JVMC or of an affiliate of JVMC),
addressed to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
(i) JVMC is existing in good standing as a limited partnership
organized under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement has been duly
authorized by JVMC and this Agreement has been duly executed and delivered
by JVMC.
(iii) The execution and delivery of the Purchase Agreement has been
duly authorized by JVMC, and the Purchase Agreement has been duly executed
and delivered by JVMC and constitutes a legal, valid and binding agreement
of JVMC, enforceable against JVMC in accordance with its terms subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, receivership or other laws relating to creditors' rights
generally or the rights of creditors of banks, and to general principles of
equity including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a proceeding
at law or in equity), and except that the enforcement of rights with
respect to indemnification and contribution obligations may be limited by
applicable law.
(iv) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body having
jurisdiction over JVMC is required for the consummation by JVMC of the
transactions contemplated by this Agreement and the Purchase Agreement,
except such consents, approvals, authorizations, registrations and
qualifications as have been obtained.
(v) The execution, delivery and performance of this Agreement and
the Purchase Agreement by JVMC and the consummation of the transactions
contemplated thereby do not and will not conflict with or result in a
material breach or violation of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel and to which JVMC is a party or by which JVMC is bound or to which
any of the property or assets of JVMC or any of its subsidiaries is
subject; nor will such actions result in any violation of any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over JVMC or any of its properties or assets.
11
(vi) There are no actions, proceedings or investigations pending
before or, to the best knowledge of such counsel, threatened by any court,
administrative agency or other tribunal to which JVMC is a party or of
which any of its properties is the subject: (A) which if determined
adversely to JVMC would have a material adverse effect on the business,
results of operations or financial condition of JVMC; (B) asserting the
invalidity of this Agreement or the Purchase Agreement; (C) seeking to
prevent the consummation by JVMC of any of the transactions contemplated by
this Agreement or the Purchase Agreement; or (D) which might materially and
adversely affect the performance by JVMC of its obligations under, or the
validity or enforceability of this Agreement or the Purchase Agreement.
Each of such opinions (a) may express counsel's 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
Purchase Agreement, (b) may assume the due authorization, execution and delivery
of this Agreement and the Purchase Agreement and the instruments and documents
referred to therein by the parties thereto other than JVMC and (c) may be
qualified as an opinion only on the law of ______________ [or ______________, as
the case may be,] and the federal law of the United States of America.
(g) The Underwriters shall have received the favorable opinion from
counsel for the Master Servicer, dated the Closing Date, addressed to the
Underwriters and in form and substance satisfactory to the Underwriters, to the
effect that:
(i) The Master Servicer has been duly organized as a corporation and
is validly existing and in good standing under the laws of the State of
____________ and has corporate power and authority (corporate and other) to
own its properties and conduct its business as described in the Prospectus,
to enter into and perform its obligations under the Pooling and Servicing
Agreement and to consummate the transactions contemplated thereby, is duly
qualified as a foreign corporation and in good standing in all
jurisdictions in which the ownership or leasing of property or the conduct
of its business requires such qualification, owns or possesses or has
obtained all material governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to lease, own or license, as
the case may be, and to operate, its properties and to carry on its
business as described in the Prospectus, and is conducting its business so
as to comply in all material respects with all applicable statutes,
ordinances, rules and regulations of the jurisdictions in which it is
conducting business.
(ii) The execution and delivery of the Pooling and Servicing
Agreement has been duly authorized by the Master Servicer and the Pooling
and Servicing Agreement has been duly executed and delivered by it and
constitutes its valid and binding agreement, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or similar laws affecting the enforcement of rights of
creditors generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law.
12
(iii) Neither the execution nor the delivery of the Pooling and
Servicing Agreement, nor the consummation of any other of the transactions
contemplated therein, nor the fulfillment of the terms of the Pooling and
Servicing Agreement will conflict with, result in a breach or violation of
any term or provision of, or constitute a default (or an event which with
the passage of time or notification, or both, would constitute a default)
under the [certificate] [articles] of incorporation or by-laws of the
Master Servicer, any statute currently applicable to it or any order, or
regulation currently applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it or
the terms of any indenture or other agreement or instrument known to such
counsel to which it is a party or by which it or any of its properties are
bound.
(iv) No approval, authorization, consent or order, registration,
filing, qualification, license or permit of or with any court or government
agency or body is required for the consummation by the Master Servicer of
the transaction contemplated in the Pooling and Servicing Agreement.
Each of such opinions (a) may express counsel's 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, (b) may assume the due authorization, execution
and delivery of the Pooling and Servicing Agreement and the instruments and
documents referred to therein by the parties thereto other than the Master
Servicer and (c) may be qualified as an opinion only on the law of _____________
[or ________________, as the case may be,] and the federal law of the United
States of America.
(h) The Underwriters shall have received the favorable opinion of counsel
to the Trustee, dated the Closing Date, addressed to the Underwriters and in
form and substance satisfactory to the Underwriters, which may include, among
other items, opinions to the effect that:
(i) The Trustee has been duly incorporated and is validly existing
as a _________ in good standing under the laws of the ________.
(ii) The Trustee has duly authorized, executed and delivered the
Pooling and Servicing Agreement, which constitutes the legal, valid and
binding agreement of the Trustee, enforceable against the Trustee in
accordance with its terms, subject, as to enforcement of remedies, to (A)
applicable bankruptcy, insolvency, reorganization, and other similar laws
affecting the rights of creditors generally, and (B) to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iii) Upon the execution, authentication and delivery of the
Certificates by the Trustee on the Closing Date, the Certificates will have
been duly issued on behalf of the Trust Fund.
(iv) The execution and delivery by the Trustee of the Pooling and
Servicing Agreement and the performance by the Trustee of its obligations
thereunder, including
13
the execution and authentication of the Certificates, do not conflict with
or result in a violation of the certificate of incorporation or bylaws of
the Trustee or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Trustee or any of
its properties or assets.
(v) The Trustee has full power and authority to execute and deliver
the Pooling and Servicing Agreement and to perform its obligations
thereunder.
(vi) There are no actions, proceedings or investigations pending or
threatened against or affecting the Trustee before of by any court,
arbitrator, administrative agency or other governmental authority which, if
decided adversely to the Trustee, would materially and adversely affect the
ability of the Trustee to carry out the transactions contemplated in the
Pooling and Servicing Agreement.
(vii) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body of the
United States of America or any state thereof is required for the
execution, delivery or performance by the Trustee of the Pooling and
Servicing Agreement.
(i) The Underwriters shall have received the favorable opinion or
opinions, dated the date of the Closing Date, of Xxxxxxx Xxxxxxxxx Xxxxxxx &
Xxxxxxx, L.L.P., counsel for the Underwriters, with respect to the issue and
sale of the Certificates, the Registration Statement, this Agreement, the
Prospectus and such other related matters as the Underwriters may reasonably
require.
(j) The Depositor shall have furnished to the Underwriters a certificate,
dated the Closing Date, of a co-trustee of the Depositor stating that:
(i) The representations and warranties of the Depositor in Section
1 of this Agreement are true and correct as of the Closing Date; and the
Depositor has complied with all its agreements contained herein; and
(ii) Such person has carefully examined the Registration Statement
and the Prospectus and, to the best of his or her knowledge as of the
Closing Date, the 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.
(k) The Trustee shall have furnished to the Underwriters a certificate of
the Trustee, signed by one or more duly authorized officers of the Trustee,
dated the Closing Date, as to the due authorization, execution and delivery of
the Pooling and Servicing Agreement by the Trustee and the acceptance by the
Trustee of the trusts created thereby and the due execution, authentication and
delivery of the Certificates by the Trustee thereunder and such other matters as
the Underwriters shall reasonably request.
(l) The Offered Certificates shall have received the ratings described in
the Prospectus.
14
(m) The Underwriters shall have received at or before the Closing Date,
from _________________ , the Depositor's independent accountants, one or more
letters, dated as of or prior to the date of the first use of the Prospectus
Supplement, in form reasonably acceptable to the Underwriters (the "Letters"),
(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 and (B) stating the conclusions and findings of such firm with
respect to the financial information and other matters covered by its letter.
(n) 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
Certificates 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 Certificates as herein contemplated shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
(o) 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 Nasdaq Stock 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 Certificates
on the terms and in the manner contemplated in the Prospectus.
If any condition specified in this Section 6 shall not have been fulfilled
when and as required to be fulfilled this Agreement may be terminated by the
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 7.
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 7. Payment of Expenses
All costs and expenses incident to the transactions contemplated by this
Agreement and the Pooling and Servicing Agreement, including all costs and
expenses incident to the performance of the obligations of the Depositor
(including costs and expenses of its counsel),
15
shall be borne by the Depositor; provided that the Underwriters agree to pay (a)
the fees and expenses of Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P., as
Underwriters' counsel, and (b) all fees and expenses of qualifying the
Certificates under the securities laws of the several jurisdictions as provided
in Section 5(e) hereof and of preparing, printing and distributing a "Blue Sky
Memorandum" (including related fees and expenses of Blue Sky counsel).
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 11, the Depositor shall reimburse the Underwriters for all
of their reasonable out-of-pocket expenses incident to the transactions
contemplated by this Agreement, including fees and disbursements of a single
counsel to the Underwriters.
Section 8. Indemnification and Contribution
(a) The Depositor and JVMC agree to indemnify and hold harmless the
Underwriters, their directors 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 Offered
Certificates), to which the Underwriters, their directors 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, (A) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, (B) 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, (C) any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus or (D) the omission or alleged omission to state, in the Prospectus,
a material fact required to be stated therein or necessary to make the
statements in the Prospectus, in the light of the circumstances under which they
were made, not misleading, and shall reimburse each Underwriter, each such
director and each such controlling person promptly upon demand for any legal or
other expenses reasonably incurred by such Underwriter, such director 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 and JVMC 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 any of the
Underwriters specifically for inclusion therein (as specified in Section 8(h)
below). The foregoing indemnity agreement is in addition to any liability which
the Depositor and JVMC may otherwise have to the Underwriters, its directors or
any controlling person of the Underwriters.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Depositor, each of its trustees and co-trustees, 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 trustee, co-trustee, 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) an
untrue, statement or alleged untrue
16
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 in the Prospectus or necessary to make the
statements in the Prospectus, 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 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
(as specified in Section 8(h) below), 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 8
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 8, 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 8 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 8.
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 8 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
17
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 8 consist of the Underwriters or any of
their directors and controlling persons, or by the Depositor, if the indemnified
parties under this Section 8 consist of the Depositor or any of the Depositor's
trustees, co-trustees, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 8(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 (A) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (B) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement.
(d) (i) Each Underwriter agrees to provide the Depositor no later than
two Business Days prior to the day on which the Prospectus Supplement is
required to be filed pursuant to Rule 424 with a copy of its Structural Term
Sheets and Computational Materials (each as defined below), if any, for filing
with the Commission on Form 8-K.
(ii) Each Underwriter agrees to provide the Depositor with its
Collateral Term Sheets no later than one Business Day prior to the day on
which such Collateral Term Sheets are distributed to potential investors.
(e) Each Underwriter agrees, severally and not jointly, assuming all
Seller-Provided Information (defined below) is accurate and complete in all
material respects, to indemnify and hold harmless the Depositor, each of its
trustees and co-trustees, each of its officers who sign the Registration
Statement 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
(defined below) provided by such Underwriter, or arise out of or are based upon
the omission or alleged omission, when read in conjunction with the Prospectus,
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
18
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 an Underwriter under this Section 8(e) shall be in addition
to any liability which such Underwriter may otherwise have.
The procedures set forth in Section 8(c) shall be equally applicable to
this Section 8(e).
(f) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(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) if
indemnification is sought under Section 8(a) or (b), 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
Certificates; (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 8(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 or (iii) if indemnification is sought under
Section 8(e), in such proportion as is appropriate to reflect the relative fault
of the Depositor on the one hand and the Underwriters on the other hand with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action is respect thereof.
The relative benefits of the Underwriters and the Depositor shall be deemed
to be in such proportions that the Underwriters are responsible for their pro
rata portion of such losses, liabilities, claims, damages and expenses
determined in accordance with the ratio that the difference between the purchase
price paid to the Depositor by the Underwriters and the aggregate resale price
received by the Underwriters bears to the purchase price paid to the Depositor
by the Underwriters, 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 8(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 8(f),
shall be deemed to include, for purposes of this Section 8(f), any legal or
other expenses reasonably
19
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 8, the term "Derived Information" means
such portion, if any, of the information delivered to the Depositor pursuant to
Section 8(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;
(ii) does not constitute Seller-Provided Information; and
(iii) is of the type of information defined as Collateral Term
Sheets, Structural Term Sheets or Computational Materials (as such terms
are interpreted in the No-Action Letters (defined below)).
"Seller-Provided Information" means the information contained on any computer
tape furnished to the Underwriters by JVMC concerning the assets comprising the
Trust Fund.
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 Commission 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 an behalf of Xxxxxx, Peabody & Co., Inc. (which
letter, and the SEC staffs response thereto, were publicly available May 20,
1994).
The Underwriters shall cooperate with the Depositor and with the
Depositor's independent accountants in obtaining a letter, in form and substance
satisfactory to the Depositor and the Underwriters, of the Depositor's
independent accountants regarding the information in any Form 8-K consisting of
Computational Materials and/or Structural Term Sheets furnished by the
Underwriters, in each case in XXXXX format as formatted by the Depositor. Any
such letter shall be obtained prior to the filing of any such Form 8-K with the
Commission at the Underwriters sole expense.
The Underwriters represent, warrant to, and covenant with, the Depositor
that the Derived Information is not misleading and not inaccurate in any
material respect and that any Seller-Provided Information contained in any Form
8-K which is not otherwise inaccurate in any material respect is not presented
in the Form 8-K in a way that is either misleading or inaccurate in any material
respect. The Underwriters further covenant with the Depositor that if any
20
Computational Materials or Collateral Term Sheets contained in any Form 8-K are
found to include any information that is misleading or inaccurate in any
material respect, the Underwriters promptly shall inform the Depositor of such
finding, provide the Depositor with revised and/or corrected Computational
Materials or Collateral Term Sheets, as the case may be, and promptly prepare
and deliver to the Depositor (in hard copy and XXXXX format) for filing with the
Commission in accordance herewith, revised and/or corrected Computational
Materials or Collateral Term Sheets, as the case may be.
The Underwriters covenant that all Computational Materials and Collateral
Term Sheets used by it shall contain the following legend:
"THIS INFORMATION IS FURNISHED TO YOU SOLELY BY ___ AND NOT BY THE ISSUER
OR ANY OF ITS AFFILIATES. NEITHER THE ISSUER 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.
The Underwriters covenant that all Collateral Term Sheets used by it shall
contain the following additional legend:
"THIS INFORMATION CONTAINED HEREIN IS SUPERSEDED BY THE DESCRIPTION OF THE
MORTGAGE LOANS CONTAINED IN THE PROSPECTUS SUPPLEMENT."
The Underwriters covenant that all Collateral Term Sheets (other than the
initial Collateral Term Sheet) shall contain the following additional legend:
"THIS INFORMATION CONTAINED HEREIN SUPERSEDES THE INFORMATION IN ALL PRIOR
COLLATERAL TERM SHEETS, IF ANY."
If the Underwriters do not provide any Computational Materials or
Collateral Term Sheets to the Depositor pursuant to the preceding paragraphs,
the Underwriters shall be deemed to have represented, as of the Closing Date,
that they did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the Certificates
that is required to be filed with the Commission in accordance with the No-
Action Letters, and the Underwriters shall provide the Depositor with a
certification to that effect on the Closing Date.
(h) The Underwriters confirm that the information set forth (i) in the
_____ paragraph on the cover page and (ii) in the _____ paragraph and the _____
paragraph under the caption "Underwriting" in the Prospectus Supplement is
correct and, except for the additional information noted in the following
sentence, 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. In addition, ____ confirms that the
information set forth in the
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_____ paragraph on the cover page is correct and has been furnished in writing
to the Depositor by ____ specifically for inclusion in the Registration
Statement and the Prospectus.
Section 9. Representations, Warranties and Agreements to Survive Delivery
All representations, warranties and agreements contained in this Agreement
or contained in certificates of officers of the 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 an behalf of the Depositor and shall survive delivery of any
Certificates to the Underwriters.
Section 10. Default by One of the Underwriters
If one of the Underwriters participating in the public offering of the
Offered Certificates shall fail at the Closing Date to purchase the Offered
Certificates which it is obligated to purchase hereunder (the "Defaulted
Certificates"), then the non-defaulting Underwriter shall have the right, within
[24] hours thereafter, to purchase all, but not less than all, of the Defaulted
Certificates in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, the non-defaulting Underwriter has not completed such
arrangements within such [24]-hour period, then:
(a) if the aggregate principal amount of Defaulted Certificates does not
exceed 10% of the aggregate principal amount of the Offered Certificates to be
purchased pursuant to this Agreement, the non-defaulting Underwriter shall be
obligated to purchase the full amount thereof, or
(b) if the aggregate principal amount of Defaulted Certificates exceeds
10% of the aggregate principal amount of the Offered Certificates to be
purchased pursuant to this Agreement, this Agreement shall terminate, without
any liability on the part of the non-defaulting Underwriter.
No action taken pursuant to this Section 10 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
10, the non-defaulting Underwriter 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 11. 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 6(o) of this Agreement shall occur and be
continuing. In the event of any such termination, the covenant set forth in
Section 5(f), the provisions of Section 7, the indemnity agreement set forth in
Section 8, and the provisions of Sections 9 and 13 shall remain in effect.
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SECTION 12. Notices
All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to _____________________________, shall be delivered or sent by
mail, telex or facsimile transmission to _________, ______________, _____,
Attention: ________________ (Fax: (___) ___-____), and if to
_________________________________, to _______________, ___, _____, Attention:
______________ (Fax: (___) ___-____); or
(b) if to the Depositor, shall be delivered or sent by mail, telex or
facsimile transmission to JV Capital Trust, ___________, _________, _____,
Attention: ________________ (Fax: (___) ___-____).
Section 13. 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 any of the Underwriters within the
meaning of Section 15 of the Securities Act, and for the benefit of trustees and
co-trustees of the Depositor, officers of 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 13, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
Section 14. 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 Certificates 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 15. Definition of the Term "Business Day"
For purposes of this Agreement, "Business Day" means any day other than (a)
a Saturday or Sunday, or (b) a legal holiday in the States of New York or
Delaware or (c) a day on which banking or savings and loan institutions in the
States of New York or Delaware or the state in which the Corporate Trust Office
is located are authorized or obligated by law or executive order to be closed or
(d) a day on which the New York Stock Exchange, Inc. is closed for trading.
Section 16. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflicts of laws
provisions thereof.
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Section 17. 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 18. 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 Underwriting Agreement correctly sets forth the agreement
between the Depositor and the Underwriters, please indicate your acceptance in
the space provided for that Purpose below.
Very truly yours,
JV CAPITAL TRUST
By:Wilmington Trust Company, Trustee
By:_________________________________
Name:_______________________________
Title:______________________________
JV MORTGAGE CAPITAL, L.P.
By:JV MORTGAGE CAPITAL, INC.,
general partner
By:_________________________________
Name:_______________________________
Title:______________________________
CONFIRMED AND ACCEPTED,
as of the date first above written:
[NAME OF LEAD UNDERWRITER]
By:_________________________________
Name:_______________________________
Title:______________________________
