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EXHIBIT 1.1
FUND AMERICA INVESTORS CORPORATION II
PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
April 28, 1998
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introduction. Fund America Investors Corporation II, a Delaware
corporation (the "Company"), from time to time proposes to issue and sell
Pass-Through Certificates ("Certificates") in various series (each a "Series"),
and, within each Series, in various classes, in one or more offerings on terms
determined at the time of sale. The Certificates of each series will be issued
pursuant to a pooling agreement (each, a "Pooling Agreement") among the Company,
as seller, one or more master servicers which may include the Company and a
third-party trustee (the "Trustee"). Upon issuance, the Certificates of each
series will evidence undivided interests in the Trust Fund (as defined in the
Pooling Agreement) established for such series containing mortgages or mortgage
related securities or, in the event the Trust Fund, or a portion thereof,
constitutes the upper tier of a two-tier real estate mortgage investment conduit
("REMIC"), the Trust Fund may contain interests issued by a lower tier trust
which will contain mortgages or mortgage related securities, all as described in
the Prospectus (as defined below). Terms not defined herein which are defined in
the Pooling Agreement shall have the meanings ascribed to them in the Pooling
Agreement.
Whenever the Company determines to make an offering of a Series of
Certificates (an "Offering") through you or an underwriting syndicate managed or
co-managed by you, it will offer to enter into an agreement ("Terms Agreement")
providing for the sale of such Certificates to, and the purchase and offering
thereof by, you and such other co-managers and underwriters, if any, which have
been selected by you and have authorized you to enter into such Terms Agreement
and other related documentation on their behalf (the "Underwriters," which term
shall include you whether acting alone in the sale of Certificates or as a
co-manager or as a member of an underwriting syndicate). The Terms Agreement
relating to each Offering shall specify the
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principal amount of Certificates to be issued and their terms not otherwise
specified in the Pooling Agreement, the price at which the Certificates are to
be purchased by each of the Underwriters from the Company and the initial
public offering price or the method by which the price at which the
Certificates are to be sold will be determined. The Terms Agreement, which
shall be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between you and the
Company. Each Offering governed by this Agreement, as supplemented by the
applicable Terms Agreement, shall inure to the benefit of and be binding upon
the Company and each of the Underwriters participating in the Offering of such
Certificates.
The Company hereby agrees with the Underwriters as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to you as of the date hereof, and to the Underwriters
named in the applicable Terms Agreement as of the date of such Terms Agreement,
as follows:
(a) A registration statement, including a prospectus, and such
amendments thereto as may have been required to the date hereof, relating to the
Certificates and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended ("Act"), have been filed with
the Securities and Exchange Commission ("Commission") and such registration
statement as amended has become effective. Such registration statement as
amended and the prospectus relating to the sale of Certificates constituting a
part thereof as from time to time amended or supplemented (including any
prospectus filed with the Commission pursuant to Rule 424 of the rules and
regulations of the Commission ("Rules and Regulations") under the Act, including
any documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on or before the Effective Date of the Registration
Statement or the date of the Prospectus Supplement, are respectively referred to
herein as the "Registration Statement" and the "Prospectus"; provided, however,
that a supplement to the Prospectus (a "Prospectus Supplement") prepared
pursuant to Section 5(a) hereof shall be deemed to have supplemented the
Prospectus only with respect to the Offering of the Series of Certificates to
which it relates. The conditions of Rule 415 under the Act have been satisfied
with respect to the Company and the Registration Statement.
(b) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all material respects to
the requirements of the Act and the Rules and Regulations, and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and on the date of each Terms Agreement, the Registration Statement
and the Prospectus will conform in all material respects to the requirements of
the Act and the Rules and Regulations, and the Prospectus will not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading; provided,
however, that the foregoing does not apply to (i) statements or omissions in
such documents based upon written information furnished to the Company by or for
the benefit of any
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Underwriter specifically for use therein or (ii) any Current Report (as defined
in Section 5(b) below) or in any amendment thereof or supplement thereto,
incorporated by reference in such Registration Statement or such Prospectus (or
any amendment thereof or supplement thereto).
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus except as otherwise stated
therein, there has been no material adverse change in the condition, financial
or otherwise, earnings, affairs, regulatory situation or business prospects of
the Company whether or not arising in the ordinary course of business.
(d) This Agreement has been, and the Pooling Agreement, when executed
and delivered as contemplated hereby and thereby will have been, duly executed
and delivered by the Company and each constitutes, or will constitute when so
executed and delivered, a legal, valid and binding instrument enforceable
against the Company in accordance with its terms, subject, as to the
enforceability of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting the rights of creditors
generally, and to general principles of equity and the discretion of the court
(regardless of whether enforceability of such remedies is considered in a
proceeding in equity or at law), and except that the provisions relating to
indemnification and contribution may be unenforceable as against public policy.
(e) At the applicable Closing Date, each applicable Terms
Agreement will have been duly authorized, executed and delivered by the
Company and will be a legal, valid and binding obligation of the Company
enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, moratorium, fraudulent conveyance and other laws
affecting the rights of creditors generally, and to general principles of
equity and the discretion of the court (regardless of whether
enforceability of such remedies is considered in a proceeding in equity or
at law), and except that the provisions relating to indemnification and
contribution may be unenforceable as against public policy.
(f) The issuance of the Certificates has been duly authorized by the
Company and, when such Certificates are executed and authenticated in accordance
with the Pooling Agreement and delivered against payment pursuant to this
Agreement, such Certificates will be validly issued and outstanding; and the
Certificates will be entitled to the benefits provided by the Pooling Agreement.
The Certificates are in all material respects in the form contemplated by the
Pooling Agreement.
(g) Neither the Company nor the Trust Fund is or, as a result of the
offer and sale of the Certificates as contemplated in this Agreement will
become, an "investment company" as defined in the Investment Company Act of
1940, as amended (the "Investment Company Act"), or an "affiliated person" of
any such "investment company" that is registered or is required to be registered
under the Investment Company Act (or an "affiliated person" of any such
"affiliated person"), as such terms are defined in the Investment Company Act.
(h) The representations and warranties made by the Company in the
Pooling Agreement and made in any Officer's Certificate of the Company delivered
pursuant to the Pooling Agreement will be true and correct at the time made and
on the Closing Date.
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3. Purchase, Sale and Delivery of Certificates. Subject to the terms
and conditions hereof, the delivery of the applicable mortgage loans or mortgage
related securities and in reliance upon the representations and warranties set
forth herein, the Company agrees to sell to the Underwriters and the
Underwriters agree to purchase the Certificates. Delivery of and payment for the
Certificates shall be made at your office or at such other location as you shall
make known at such time as shall be specified in the applicable Terms Agreement,
each such time being herein referred to as a "Closing Date." Delivery of the
Certificates shall be made by the Company to the Underwriters against payment of
the purchase price specified in the applicable Terms Agreement in Federal Funds
by wire or check. Unless delivery is made through the facilities of the
Depository Trust Company, the Certificates so to be delivered will be in
definitive, fully registered form, in such denominations and registered in such
names as you request, and will be made available for inspection and packaging at
your office at least twenty-four hours prior to the applicable Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Certificates for sale to the public as set forth in the
Prospectus.
5. Covenants of the Company. The Company covenants and agrees with
you and the several Underwriters participating in the Offering of any Series of
Certificates that:
(a) In connection with the execution of each Terms Agreement, the
Company will prepare a Prospectus Supplement to be filed under the Act setting
forth the principal amount of Certificates covered thereby and their terms not
otherwise specified in the Prospectus, the price at which the Certificates are
to be purchased by the Underwriters from the Company, either the initial public
offering price or the method by which the price at which the Certificates are to
be sold will be determined, the selling concession and reallowance, if any, any
delayed delivery arrangements, and such other information as you and the Company
deem appropriate in connection with the offering of the Certificates, but the
Company will not file any amendments to the Registration Statement or any
amendments or supplements to the Prospectus, unless it shall first have
delivered copies of such amendments or supplements to you, and you shall not
have objected thereto promptly after receipt thereof. The Company will advise
you or your counsel promptly (i) when notice is received from the Commission
that any post-effective amendment to the Registration Statement has become or
will become effective, and (ii) of any order or communication suspending or
preventing, or threatening to suspend or prevent, the offer and sale of the
Certificates, or of any proceedings or examinations that may lead to such an
order or communication, whether by or of the Commission or any authority
administering any state securities or Blue Sky law, as soon as the Company is
advised thereof, and will use its best efforts to prevent the issuance of any
such order or communication and to obtain as soon as possible its lifting, if
issued.
(b) The Company will cause any Computational Materials and any
Structural Term Sheets (each as defined in Section 8 below) with respect to each
Series of Certificates that are delivered by the Underwriters to the Company
pursuant to Section 8 to be filed with the Commission on a Current Report on
Form 8-K (a "Current Report") pursuant to Rule 13a-11
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under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on
the business day immediately following the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the Company by
any of the Underwriters prior to 10:30 a.m. (and will use its best efforts to
cause such Computational Materials and Structural Term Sheets to be so filed
prior to 2:00 p.m., New York time, on such business day), and will promptly
advise you when such Current Report has been so filed. The Company will cause
one Collateral Term Sheet (as defined in Section 9 below) with respect to an
Offering of a Series that is delivered by any of the Underwriters to the Company
in accordance with the provisions of Section 9 to be filed with the Commission
on a Current Report pursuant to Rule 13a-11 under the Exchange Act on the
business day immediately following the day on which such Collateral Term Sheet
is delivered to counsel for the Company by any of the Underwriters prior to
10:30 a.m. In addition, if at any time prior to the availability of the related
Prospectus Supplement, any of the Underwriters has delivered to any prospective
investor a subsequent Collateral Term Sheet that reflects, in the reasonable
judgment of such Underwriter and the Company, a material change in the
characteristics of the mortgage loans or mortgage related securities for the
related Series from those on which a Collateral Term Sheet with respect to the
related Series previously filed with the Commission was based, the Company will
cause any such Collateral Term Sheet that is delivered by such Underwriter to
the Company in accordance with the provisions of Section 9 to be filed with the
Commission on a Current Report on the business day immediately following the day
on which such Collateral Term Sheet is delivered to counsel for the Company by
such Underwriter prior to 2:00 p.m. In each case, the Company will promptly
advise you when such Current Report has been so filed. Notwithstanding the four
preceding sentences, the Company shall have no obligation to file any materials
provided by any of the Underwriters pursuant to Sections 8 and 9 which (i) in
the reasonable determination of the Company are not required to be filed
pursuant to the Xxxxxx Letters or the PSA Letter (each as defined in Section 8
below), or (ii) contain erroneous information or contain any untrue statement of
a material fact or, when read in conjunction with the Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it being understood,
however, that the Company shall have no obligation to review or pass upon the
accuracy or adequacy of, or to correct, any Computational Materials or ABS Term
Sheets (as defined in Section 9 below) provided by such Underwriter to the
Company pursuant to Section 8 or Section 9 hereof. The Company shall give notice
to you and such Underwriter of its determination not to file any materials
pursuant to clause (i) of the preceding sentence and agrees to file such
materials if such Underwriter or you reasonably object to such determination
within one business day after receipt of such notice.
(c) If at any time when a prospectus relating to the Certificates is
required to be delivered under the Act any event occurs as a result of which in
the opinion of counsel for the Company or the Underwriters the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or
if it is necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance; provided, however, that (i) the Company will not be
required to file any such amendment or
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supplement with respect to any Computational Materials, Structural Term Sheets
or Collateral Term Sheets incorporated by reference in the Prospectus other than
any amendments or supplements of such Computational Materials or Structural Term
Sheets that are furnished to the Company by the Underwriter pursuant to Section
8(e) hereof or any amendments or supplements of such Collateral Term Sheets that
are furnished to the Company by the Underwriter pursuant to Section 9(d) hereof
which are required to be filed in accordance therewith and (ii) any such
amendment or update prepared at the request of the Underwriters or as required
by applicable securities laws more than nine months after the Closing Date shall
be at the expense of the Underwriters.
(d) With respect to each Series of Certificates, the Company will
make generally available to the holders of the Certificates and will deliver to
you, in each case as soon as practicable, an earnings statement covering the
twelve-month period beginning after the date of the Terms Agreement in respect
of such series of Certificates, which will satisfy the provisions of Section
11(a) of the Act with respect to the Certificates.
(e) The Company will furnish to you copies of the Registration
Statement (two of which will be signed and will include all documents and
exhibits thereto or incorporated by reference therein), each related preliminary
prospectus, the Prospectus, and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as you
request.
(f) The Company will use its best efforts arrange for the
qualification of the Certificates for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as you
reasonably designate and will continue such qualifications in effect so long as
reasonably required for the distribution; provided, however, that the Company
shall not be required to qualify to do business in any jurisdiction where it is
not qualified on the date of the related Terms Agreement or to take any action
which would subject it to general or unlimited service of process in any
jurisdiction in which it is not, on the date of the related Terms Agreement,
subject to such service of process; and provided further that the Underwriters
will pay all costs and expenses associated therewith.
(g) The Company will pay all expenses incidental to the performance
of its obligations under this Agreement and any Terms Agreement and will
reimburse the Underwriters for any expenses (including fees and disbursements of
counsel and accountants) incurred by them in connection with qualification of
the Certificates and determination of their eligibility for investment under the
laws of such jurisdictions as you designate and the printing of memoranda
relating thereto, for any fees charged by the nationally recognized statistical
rating agencies for the rating of the Certificates, for the filing fee of the
National Association of Securities Dealers, Inc. relating to the Certificates,
if applicable, and for expenses incurred in distributing preliminary
prospectuses to the Underwriters.
(h) During the period when a prospectus is required by law to be
delivered in connection with the sale of the Certificates pursuant to this
Agreement, the Company will file or cause to be filed, on a timely and complete
basis, all documents that are required to be filed by
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the Company with the Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(i) So long as the Certificates of a Series shall be outstanding, the
Company will deliver to you the annual statement of compliance delivered to the
Trustee pursuant to the Pooling Agreement and the annual statement of a firm of
independent public accountants furnished to the Trustee pursuant to the Pooling
Agreement as soon as such statements are furnished to the Trustee.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters named in any Terms Agreement to purchase and pay for the
Certificates will be subject to the accuracy of the representations and
warranties on the part of the Company as of the date hereof, the date of the
applicable Terms Agreement and the applicable Closing Date, to the accuracy of
the statements made in any officers' certificates (each an "Officer's
Certificate") pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a)(i) At the time the applicable Terms Agreement is executed,
Deloitte & Touche and/or any other firm of certified independent public
accountants acceptable to you shall have furnished to you a letter, addressed to
you, and in form and substance satisfactory to you in all respects, stating in
effect that using the assumptions and methodology used by the Company, all of
which shall be described in such letter or the Prospectus Supplement, they have
recalculated such numbers, percentages and weighted average lives set forth in
the Prospectus as you may reasonably request, compared the results of their
calculations to the corresponding items in the Prospectus, and found each such
number, percentage, and weighted average life set forth in the Prospectus to be
in agreement with the results of such calculations. To the extent historical
financial delinquency or related information is included with respect to one or
more master servicers, such letter or letters shall also relate to such
information.
(a)(ii) At the Closing Date, Deloitte & Touche and/or any other firm
of certified independent public accountants acceptable to you shall have
furnished to you a letter, addressed to you, and in form and substance
satisfactory to you in all respects, relating to the extent such information is
not covered in the letter or letters provided pursuant to clause (a)(i), to a
portion of the information set forth on the Schedule attached to the Pooling
Agreement and the characteristics of the mortgage loans or mortgage related
securities, as presented in the Prospectus Supplement or the Form 8-K relating
thereto, or if a letter relating to the same information is provided to the
Trustee, indicating that you are entitled to rely upon its letter to the
Trustee.
(b) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
been any change, or any development involving a prospective change, in or
affecting the business or properties of the Company or any of its affiliates the
effect of which, in any case, is, in your judgment, so material and adverse as
to make it impracticable or inadvisable to proceed with the Offering or the
delivery of the Certificates as contemplated by the Registration Statement and
the Prospectus. All actions required to be taken and all filings required to be
made by the Company under the Act
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and the Exchange Act prior to the sale of the Certificates shall have been duly
taken or made; and prior to the applicable Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted, or to the
knowledge of the Company or you, shall be contemplated by the Commission or by
any authority administering any state securities or Blue Sky law.
(c) Unless otherwise specified in any applicable Terms Agreement for
a Series, the Certificates shall be rated in one of the four highest grades by
one or more nationally recognized statistical rating agencies specified in said
Terms Agreement.
(d) You shall have received the opinion of counsel, dated the
applicable Closing Date, to the effect that:
1. The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its assets and conduct its business as
described in the Prospectus. The Company has no subsidiaries.
2. The Underwriting Agreement, the Terms Agreement, and the Purchase
Agreement have been duly authorized, executed and delivered by the Company and
assuming due and valid authorization and execution by the Underwriter, each
constitutes a legal, valid and binding obligation of the Company.
3. The Pooling Agreement has been duly and validly authorized,
executed and delivered by the Company and assuming due and valid authorization
and execution by the other parties thereto, constitutes the valid and binding
agreement of the Company, enforceable in accordance with its terms.
4. Upon due execution and authentication by the Trustee of the
Certificates in accordance with the Pooling Agreement, and delivery to, and
payment for the Certificates by the Underwriter, as provided in the Underwriting
Agreement and the Terms Agreement, the Certificates will be validly issued and
entitled to the benefits of the Pooling Agreement.
5. The Registration Statement has become effective under the
Securities Act, and, to our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under the
Securities Act.
6. The statements in the Prospectus under the heading "Certain
Federal Income Tax Consequences" and in the Prospectus Supplement under the
heading "Certain Federal Income Tax Considerations," to the extent that they
constitute matters of law or legal conclusions have been prepared or reviewed by
us and provide a fair summary of such law or conclusions.
7. The Pooling Agreement is not required to be qualified under the
Trust
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Indenture Act of 1939, as amended, and neither the Company nor the Trust is
required to be registered under the Investment Company Act of 1940, as amended.
Each opinion also shall relate to such other matters as may be
specified in the related Terms Agreement or as to which you reasonably may
request. In rendering any such opinion, counsel for the Company may rely on
certificates of responsible officers of the Company, the Trustee, and public
officials or, as to matters of law other than Delaware or Federal law, on
opinions of other counsel (copies of which opinions shall be delivered to you),
provided that, in cases of opinions of other counsel, counsel for the Company
shall include in its opinion a statement of its belief that both it and you are
justified in relying on such opinions.
(e) You shall have received from counsel for the Company a letter,
dated as of the Closing Date, stating that you may rely on the opinions
delivered by such firm under the Pooling Agreement and to the rating agency or
agencies rating the Certificates as if such opinions were addressed directly to
you (copies of which opinions shall be delivered to you).
(f) You shall have received from counsel for the Underwriters, if
such counsel is different from counsel to the Company, such opinion or opinions,
dated as of the Closing Date, with respect to the validity of the Certificates,
the Registration Statement, the Prospectus and other related matters as the
Underwriters may require, and the Company shall have furnished to such counsel
such documents as they may have requested from it for the purpose of enabling
them to pass upon such matters.
(g) You shall have received Officer's Certificates signed by such of
the principal executive, financial and accounting officers of the Company as you
may request, dated as of the Closing Date, in which such officers, to the best
of their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct; that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Date; that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated; that, subsequent to the respective dates as of
which information is given in the Prospectus, and except as set forth or
contemplated in the Prospectus, there has not been any material adverse change
in the general affairs, business, key personnel, capitalization, financial
condition or results of operations of the Company; and that except as otherwise
stated in the Prospectus, there are no material actions, suits or proceedings
pending before any court or governmental agency, authority or body or, to their
knowledge, threatened, affecting the Company or the transactions contemplated by
this Agreement.
The Company will furnish you with such conformed copies of such
opinions, certificates, letters and documents as you reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects with respect to a particular Offering
when and as provided in this Agreement and the related Terms Agreement, or if
any of the opinions and certificates mentioned above or
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elsewhere in this Agreement and the related Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to you, this
Agreement (with respect to the related Offering) and the related Terms Agreement
and all obligations of the Underwriters hereunder (with respect to the related
Offering) and thereunder may be canceled at, or at any time prior to, the
related Closing Date by the Underwriter. Notice of such cancellation shall be
given to the Company in writing, or by telephone or telegraph confirmed in
writing.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act against
any and all losses, claims, damages, liabilities and expenses whatsoever
(including but not limited to attorneys' fees and any and all expenses
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange 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 or alleged
untrue statement of a material fact contained in the Registration Statement
relating to the applicable Series of Certificates (the "Applicable Registration
Statement") as it became effective or in any amendment or supplement thereof, or
in the Applicable Registration Statement or the related Prospectus, or in any
amendment thereof, or arise out of or are based upon the omission or alleged
omission (in the case of any Computational Materials or ABS Term Sheets in
respect of which the Company agrees to indemnify the Underwriters, as set forth
below, when such are read in conjunction with the related Prospectus and
Prospectus Supplement) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that (i) the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein (A) in reliance upon and in conformity with written
information furnished to the Company as herein stated by or on behalf of the
Underwriters specifically for use in connection with the preparation thereof or
(B) in any Current Report or any amendment or supplement thereof, except to the
extent that any untrue statement or alleged untrue statement therein or omission
therefrom results (or is alleged to have resulted) directly from an error (a
"Mortgage Pool Error") in the information concerning the characteristics of the
mortgage loans or mortgage related securities furnished by the Company to the
Underwriters in writing or by electronic transmission that was used in the
preparation of either (x) any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) included in such Current Report (or amendment
or supplement thereof) or (y) any written or electronic materials furnished to
prospective investors on which the Computational Materials (or amendments or
supplements) were based, (ii) such indemnity with respect to any Corrected
Statement (as defined below) in such Prospectus (or Prospectus Supplement
thereto) shall not inure to the benefit of the Underwriters (or any person
controlling any Underwriter) from whom the person asserting any loss, claim,
damage or liability purchased the Certificates of the related Series that are
the subject thereof if such person did not receive a copy of a Prospectus
Supplement to such Prospectus at or prior to the confirmation of the sale of
such Certificates and
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the untrue statement or omission of a material fact contained in such
Prospectus (or Prospectus Supplement thereto) was corrected (a "Corrected
Statement") in such other supplement and such supplement was furnished by the
Company to the Underwriters prior to the delivery of such confirmation, and
(iii) such indemnity with respect to any Mortgage Pool Error shall not inure to
the benefit of the Underwriters (or any person controlling any Underwriter)
from whom the person asserting any loss, claim, damage or liability received
any Computational Materials (or any written or electronic materials on which
the Computational Materials are based) or ABS Term Sheets that were prepared on
the basis of such Mortgage Pool Error, if, prior to the time of confirmation of
the sale of the applicable Series of Certificates to such person, the Company
notified the Underwriters in writing of the Mortgage Pool Error or provided in
written or electronic form information superseding or correcting such Mortgage
Pool Error (in any such case, a "Corrected Mortgage Pool Error"), and the
Underwriters failed to notify such person thereof or to deliver to such person
corrected Computational Materials (or underlying written or electronic
materials) or ABS Term Sheets. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) The Underwriters severally, and not jointly, agree to indemnify
and hold harmless the Company, each of the directors of the Company, each of the
officers of the Company who shall have signed the Registration Statement, and
each other person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against any losses,
claims, damages, liabilities and expenses whatsoever (including but not limited
to attorneys' fees and any and all expenses reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon (A) any untrue statement or alleged untrue
statement of a material fact contained in the Applicable Registration Statement,
as originally filed or any amendment thereof, or any related preliminary
prospectus or the Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that any such loss, claim, damage, liability or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company, by or on behalf of such Underwriter
expressly for use therein; or (B) any Computational Materials or ABS Term Sheets
(or amendments or supplements thereof) furnished to the Company by such
Underwriter pursuant to Section 8 and incorporated by reference in such
Registration Statement or the related Prospectus, Prospectus Supplement or any
amendment or supplement thereof (except that no such indemnity shall be
available for any losses, claims, damages or liabilities, or actions in respect
thereof resulting from any Mortgage Pool Error, other than a Corrected Mortgage
Pool Error). This indemnity will be in addition to any liability which the
Underwriters may otherwise have. The Company acknowledges that, unless otherwise
set forth in the applicable Terms Agreement, the statements set forth in the
last paragraph of the cover page and under the caption "Method of Distribution"
and the stabilization legend required by Item 502(d)(1) under
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Regulation S-K of the Act included in the Prospectus Supplement relating to a
Series of Certificates constitute the only information furnished in writing by
or on behalf of any Underwriter expressly for use in the Applicable Registration
Statement or the Prospectus or in any amendment thereof or supplement thereto,
as the case may be (other than any Computational Materials or ABS Term Sheets
(or amendments or supplements thereof) furnished to the Company by such
Underwriter), and each Underwriter confirms, on its behalf, that such statements
are correct.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 7 except to the extent that it has been prejudiced
in any material respect by such failure or from any liability which it may have
otherwise). In case any such action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement of
any claim or action effected without its written consent; provided, however,
that such consent was not unreasonably withheld.
(d) In order to provide for contribution in circumstances in which
the indemnification provided for in Section 7 hereof is for any reason held to
be unavailable, on grounds of public policy or otherwise, from the Company or
the Underwriters or is insufficient to hold harmless a party indemnified
thereunder, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated by
such indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses suffered by the
Company any contribution received by the Company from persons, other than the
Underwriters, who may also be liable for contribution, including persons who
control the Company within the meaning of Section 15 of the Act or Section 20(a)
of the
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Exchange Act, officers of the Company who signed the Applicable Registration
Statement and directors of the Company) to which the Company and the
Underwriters may be subject (i) in the case of any losses, claims, damages and
liabilities (or actions in respect thereof) which do not arise out of or are not
based upon any untrue statement or omission of a material fact in any
Computational Materials or ABS Term Sheets (or any amendments or supplements
thereof), in such proportions as is appropriate to reflect the relative benefits
received by the Company on one hand and the Underwriters on the other from the
Offering of the Certificates as to which such loss, liability, claim, damage or
expense is claimed to arise or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in Section 7(c)
hereof, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company on one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations or (ii) in the
case of any losses, claims, damages and liabilities (or actions in respect
thereof) which arise out of or are based upon any untrue statement or omission
of a material fact in any Computational Materials or ABS Term Sheets (or any
amendments or supplements thereof) or in any written or electronic materials
distributed to prospective investors on which the Computational Materials are
based, in such proportion as is appropriate to reflect the relative fault of the
Company on the one hand and the Underwriter that furnished such Computational
Materials or ABS Term Sheets on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof) as well as any other relevant equitable
considerations; provided, however, that in no case shall such Underwriter be
responsible under this subparagraph (ii) for any amount in excess of the
aggregate Purchase Price for the Offered Certificates.
The relative benefits received by the Company on one hand and the
Underwriters on the other shall be deemed to be in the same proportion as (x)
the total proceeds from the Offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and (y) the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the Terms Agreement in respect of the
Offering of the Certificates as to which such loss, liability, claim, damage or
expense is claimed to arise. The relative fault of the Company on one hand and
the Underwriters on the other shall be determined by reference to, among other
things, (A) in the case of clause (i) of the preceding paragraph, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on one hand or the Underwriters on the other, (B) in the case of clause (ii) of
the preceding paragraph, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to any untrue statement or omission of a material fact in any
Computational Materials or ABS Term Sheets (or any amendments or supplements
thereof) or in any written or electronic materials distributed by the applicable
Underwriter to prospective investors on which the Computational Materials are
based, and (C) in the case of either clause (i) or clause (ii) of the preceding
paragraph, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7(d) were determined by pro rata allocation or by any
other
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method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this Section 7(d), (x)
except as otherwise provided in Section 7(d)(ii), in no case shall the
Underwriters be liable or responsible for any amount in excess of the
underwriting discount set forth in the Terms Agreement relating to the
Certificates as to which such losses, claims, damages, liabilities or expenses
are claimed to arise, and (y) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7(d), each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, each
officer of the Company who shall have signed the Applicable Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) of
this Section 7(d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this Section 7(d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 7(d) or otherwise. No
party shall be liable for contribution with respect to any action or claim
settled without its consent; provided, however, that such consent was not
unreasonably withheld.
8. Computational Materials and Structural Term Sheets. (a) Not later
than 2:00 p.m., New York time, on the business day before the date on which the
Current Report relating to the Certificates of a Series is required to be filed
by the Company with the Commission pursuant to Section 5(b) hereof, you and any
other applicable Underwriter shall deliver to the Company, and unless otherwise
agreed to by the Company, in a form reasonably convertible to an XXXXX filing
format, a copy of all materials provided by the Underwriters to prospective
investors in such Certificates which constitute (i) "Computational Materials,
within the meaning of the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Commission to Xxxxxx, Peabody Acceptance
Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated, and Xxxxxx Structured Asset
Corporation and the no-action letter dated May 27, 1994 issued by the Division
of Corporation Finance of the Commission to the Public Securities Association
(together, the "Xxxxxx Letters") and the filing of such material is a condition
of the relief granted in such letter (such materials being the "Computational
Materials"), and (ii) "Structural Term Sheets" within the meaning of the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA
Letter") and the filing of such material is a condition of the relief granted in
such letter (such materials being the "Structural Term Sheets"). Each delivery
of Computational Materials and Structural Term Sheets to the Company by you and
any other applicable Underwriter pursuant to this paragraph (a) shall be
effected by delivering a copy of such materials to counsel for the Company on
behalf of the Company at the address specified by the Company and one copy of
such materials to the Company.
(b) You and each other Underwriter, by virtue of its having executed
and
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delivered the related Terms Agreement, which shall incorporate this Section 8(b)
by reference, represents and warrants to and agrees with the Company, as of the
date of the related Terms Agreement and as of the Closing Date, that:
(i) the Computational Materials furnished to the Company
pursuant to Section 8(a) constitute (either in original, aggregated
or consolidated form) all of the materials furnished to prospective
investors by such Underwriter prior to the time of delivery thereof
to the Company that are required to be filed with the Commission with
respect to the Offering of the Certificates in accordance with the
Xxxxxx Letters, and such Computational Materials comply with the
requirements of the Xxxxxx Letters;
(ii) the Structural Term Sheets furnished to the Company
pursuant to Section 8(a) constitute all of the materials furnished to
prospective investors by such Underwriter prior to the time of
delivery thereof to the Company that are required to be filed with
the Commission as "Structural Term Sheets" with respect to the
related Offering of the Certificates in accordance with the PSA
Letter, and such Structural Term Sheets comply with the requirements
of the PSA Letter;
(iii) on the date any such Computational Materials or
Structural Term Sheets with respect to the Offering of the
Certificates (or any written or electronic materials furnished to
prospective investors on which the Computational Materials are based)
were last furnished to each prospective investor and on the date of
delivery thereof to the Company pursuant to Section 8(a) and on the
related Closing Date, such Computational Materials (or such other
materials) or Structural Term Sheets did not and will not include any
untrue statement of a material fact or, when read in conjunction with
the related Prospectus and Prospectus Supplement, omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and
(iv) all Computational Materials (or underlying materials
distributed to prospective investors on which the Computational
Materials were based) or Structural Term Sheets furnished to
prospective investors contained and will contain a legend,
prominently displayed on the first page thereof, to the effect that
the Company has not prepared, reviewed or participated in the
preparation of such materials and is not responsible for the accuracy
thereof.
Notwithstanding the foregoing, you and each such Underwriter make no
representation or warranty as to whether any Computational Materials or
Structural Term Sheets (or any written or electronic materials on which
the Computational Materials are based) included or will include any untrue
statement resulting directly from any Mortgage Pool Error (except any
Corrected
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Mortgage Pool Error, with respect to materials prepared after the receipt by the
Underwriters from the Company of notice of such Corrected Mortgage Pool Error or
materials superseding or correcting such Corrected Mortgage Pool Error).
(c) Each Underwriter delivering Computational Materials shall cause a
firm of public accountants to furnish to the Company a letter, dated as of the
date on which such Underwriter delivers any Computational Materials (which term
shall be deemed to include, for purposes of this paragraph (c), calculated
statistical information delivered to prospective investors in the form of a
Structural Term Sheet) to the Company pursuant to Section 8(a), in form and
substance satisfactory to the Company, stating in effect that they have verified
the mathematical accuracy of any calculations performed by such Underwriter and
set forth in such Computational Materials.
(d) The Underwriters acknowledge and agree that the Company has
not authorized and will not authorize the distribution of any
Computational Materials (or any written or electronic materials on which
the Computational Materials are based) or Structural Term Sheets to any
particular prospective investor, and agrees that any Computational
Materials or Structural Term Sheets with respect to any Series of
Certificates furnished to prospective investors shall include a disclaimer
in the form described in paragraph (b) (iv) above. The Underwriters agree
that they will not represent to prospective investors that any
Computational Materials or Structural Term Sheets were prepared or
disseminated on behalf of the Company.
(e) If, at any time when a prospectus relating to the
Certificates of a Series is required to be delivered under the Act, it shall be
necessary to amend or supplement the related Prospectus or Prospectus
Supplement as a result of an untrue statement of a material fact contained in
any Computational Materials or Structural Term Sheets provided by an
Underwriter pursuant to this Section 8 or the omission to state therein a
material fact required, when considered in conjunction with the related
Prospectus and Prospectus Supplement, to be stated therein or necessary to make
the statements therein, when read in conjunction with the related Prospectus
and Prospectus Supplement, not misleading, or if it shall be necessary to amend
or supplement any Current Report relating to any Computational Materials or
Structural Term Sheets to comply with the Act or the rules thereunder, such
Underwriter promptly will prepare and furnish to the Company for filing with
the Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Such Underwriter
will deliver an Officer's Certificate to the Company representing and
warranting to the Company that, as of the date of delivery of such amendment or
supplement to the Company, such amendment or supplement will not include any
untrue statement of a material fact or, when read in conjunction with the
related Prospectus and Prospectus Supplement, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that such Underwriter will make no
representation or warranty as to whether any such amendment or supplement will
include any untrue statement resulting directly from any Mortgage Pool Error
(except any Corrected Mortgage Pool Error, with respect to any such amendment
or supplement prepared after the receipt by such Underwriter from the Company
of notice of such Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error). The Company shall have no
obligation to file such
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amendment or supplement if (i) the Company determines that such amendment or
supplement contains any untrue statement of a material fact or, when read in
conjunction with the related Prospectus and Prospectus Supplement, omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; it being understood, however, that the
Company shall have no obligation to review or pass upon the accuracy or
adequacy of, or to correct, any such amendment or supplement provided by such
Underwriter to the Company pursuant to this paragraph (e) or (ii) the Company
reasonably determines that such filing is not required under the Act and such
Underwriter does not object as provided below. The Company shall give notice to
such Underwriter of its determination not to file an amendment or supplement
pursuant to clause (ii) of the preceding sentence and agrees to file such
amendment or supplement if such Underwriter reasonably objects to such
determination within one business day after receipt of such notice.
9. Collateral Term Sheets. (a) Prior to the delivery of any
"Collateral Term Sheet" within the meaning of the PSA Letter, the filing of
which material is a condition of the relief granted in such letter (such
material being the "Collateral Term Sheets"), to a prospective investor in the
Certificates, the applicable Underwriter shall notify the Company and its
counsel by telephone of its intention to deliver such materials and the
approximate date on which the first such delivery of such materials is expected
to occur. Not later than 10:30 a.m., New York time, on the business day
immediately following the date on which any Collateral Term Sheet was first
delivered to a prospective investor in the Certificates of an offered series,
such applicable Underwriter shall deliver to the Company, and unless otherwise
agreed to by the Company, in a form reasonably convertible to an XXXXX format, a
complete copy of all materials provided by such Underwriter to prospective
investors in such Certificates which constitute "Collateral Term Sheets." Each
delivery of a Collateral Term Sheet to the Company pursuant to this paragraph
(a) shall be effected by delivering a copy of such materials to counsel for the
Company on behalf of the Company at the address specified by the Company and one
copy of such materials to the Company. (Collateral Term Sheets and Structural
Term Sheets are, together, referred to herein as "ABS Term Sheets.") At the time
of each such delivery, such Underwriter shall indicate in writing that the
materials being delivered constitute Collateral Term Sheets, and, if there has
been any prior such delivery with respect to the related Series, shall indicate
whether such materials differ in any material respect from any Collateral Term
Sheets previously delivered to the Company with respect to such Series pursuant
to this Section 9(a) as a result of the occurrence of a material change in the
characteristics of the related Mortgage Loans.
(b) You and each other Underwriter, by virtue of its having executed
and delivered the related Terms Agreement, which shall incorporate this Section
9(b) by reference, represents and warrants to and agrees with the Company as of
the date of the related Terms Agreement and as of the Closing Date, that:
(i) The Collateral Term Sheets furnished to the Company
pursuant to Section 9(a) constitute all of the materials furnished to
prospective investors by such Underwriter prior to time of delivery
thereof to the Company that are required to be filed with the
Commission as "Collateral Term Sheets" with respect to the related
Offering of the Certificates in accordance with the PSA Letter, and
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such Collateral Term Sheets comply with the requirements of the PSA
Letter;
(ii) On the date any such Collateral Term Sheets with
respect to the Offering of the Certificates were last furnished to
each prospective investor and on the date of delivery thereof to the
Company pursuant to Section 9(a) and on the related Closing Date,
such Collateral Term Sheets did not and will not include any untrue
statement of a material fact or, when read in conjunction with the
Prospectus and Prospectus Supplement, omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and
(iii) such Underwriter has not represented to any
prospective investor that any Collateral Term Sheets with respect to
any Series were prepared or disseminated on behalf of the Company,
and, except as otherwise disclosed by such Underwriter to the Company
in writing prior to the date hereof, all Collateral Term Sheets
previously furnished to prospective investors included a disclaimer
to the effect set forth in Section 8(b)(iv).
Notwithstanding the foregoing, you and each such Underwriter make no
representation or warranty as to whether any Collateral Term Sheet included or
will include any untrue statement or material omission resulting directly from
any Mortgage Pool Error (except any Corrected Mortgage Pool Error, with respect
to materials prepared after the receipt by such Underwriter from the Company of
notice of such Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error).
(c) Each Underwriter delivering Collateral Term Sheets acknowledges
and agrees that any Collateral Term Sheets with respect to any Series of
Certificates furnished to prospective investors from and after the date hereof
shall include a disclaimer to the effect set forth in Section 8(d) hereof, and
to the effect that the information contained in such materials supersedes the
information contained in any prior Collateral Term Sheet with respect to such
Series of Certificates being offered and will be superseded by the description
of the related Mortgage Loans in the related Prospectus Supplement. The
Underwriters agree that they will not represent to any prospective investors
that any Collateral Term Sheets were prepared or disseminated on behalf of the
Company.
(d) If, at any time when a prospectus relating to the Certificates of
a Series is required to be delivered under the Act, it shall be necessary to
amend or supplement the related Prospectus as a result of an untrue statement of
a material fact contained in any Collateral Term Sheets provided by an
Underwriter pursuant to this Section 9 or the omission to state therein a
material fact required, when considered in conjunction with the related
Prospectus and Prospectus Supplement, to be stated therein or necessary to make
the statements therein, when read in conjunction with the related Prospectus and
Prospectus Supplement, not misleading, or if it shall be necessary to amend or
supplement any Current Report relating to any Collateral Term Sheets to comply
with the Act or the rules thereunder, such Underwriter promptly will prepare and
furnish to the Company for filing with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which will effect
such compliance.
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Such Underwriter will deliver an Officer's Certificate to the Company
representing and warranting to the Company that, as of the date of delivery of
such amendment or supplement to the Company, such amendment or supplement will
not include any untrue statement of a material fact or, when read in conjunction
with the related Prospectus and Prospectus Supplement, omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, such Underwriter will make no representation
or warranty as to whether any such amendment or supplement will include any
untrue statement resulting directly from any Mortgage Pool Error (except any
Corrected Mortgage Pool Error, with respect to any such amendment or supplement
prepared after the receipt by such Underwriter from the Company of notice of
such Corrected Mortgage Pool Error or materials superseding or correcting such
Corrected Mortgage Pool Error). The Company shall have no obligation to file
such amendment or supplement if the Company determines that (i) such amendment
or supplement contains any untrue statement of a material fact or, when read in
conjunction with the related Prospectus and Prospectus Supplement, omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; it being understood, however, that the
Company shall have no obligation to review or pass upon the accuracy or adequacy
of, or to correct, any such amendment or supplement provided by such Underwriter
to the Company pursuant to this paragraph (d) or (ii) such filing is not
required under the Act. The Company shall give notice to such Underwriter of its
determination not to file an amendment or supplement pursuant to clause (ii) of
the preceding sentence.
10. Default of Underwriters. If any Underwriter or Underwriters
participating in an Offering of Certificates default in their obligations to
purchase Certificates hereunder and under the Terms Agreement and the aggregate
purchase price of Certificates which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the aggregate purchase
price of the Certificates then being purchased, you may make arrangements
satisfactory to the Company for the purchase of such Certificates by other
persons, including any of the Underwriters, but if no such arrangements are made
by the Closing Date the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective total commitments as set forth in
the applicable Terms Agreement (for all classes of Certificates), to purchase
the Certificates which such defaulting Underwriter or Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so default and the
aggregate purchase price of Certificates with respect to which such default or
defaults occur is more than 10% of the aggregate purchase price of Certificates
then being purchased, and arrangements satisfactory to you and the Company for
the purchase of such Certificates by other persons are not made within 36 hours
after such default, the Terms Agreement as to which such offering relates will
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except as provided in Section 11. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties, and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will
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remain in full force and effect, regardless of any investigation, or statement
as to the result thereof, made by or on behalf of any Underwriter or the
Company or any of its officers or directors or any controlling person, and will
survive delivery of and payment for the Certificates and any termination of
this Agreement or any Terms Agreement, including any termination pursuant to
Section 10.
12. Termination. You shall have the right to terminate any Terms
Agreement at any time prior to the applicable Closing Date if any domestic or
international event or act or occurrence has materially disrupted, or in your
opinion will in the immediate future materially disrupt, securities markets; or
if trading on the New York or American Stock Exchanges shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required on the New
York or American Stock Exchanges by the New York or American Stock Exchanges or
by order of the Commission or any other governmental authority having
jurisdiction; or if the United States shall have become involved in a war or
major hostilities; or if a banking moratorium has been declared by a state or
Federal authority, or if a banking moratorium in foreign exchange trading by
major international banks or persons has been declared; or if any new
restriction materially and adversely affecting the distribution of the Series of
Certificates as to which such Terms Agreement relates shall have become
effective; or if there shall have been such change in the market for securities
in general or in political, financial or economic conditions as in your judgment
would be so materially adverse as to make it inadvisable to proceed with the
Offering, sale and delivery of the Series of Certificates as to which such Terms
Agreement relates on the terms contemplated in such Terms Agreement. Any notice
of termination pursuant to this Section 12 shall be by telephone, telex, or
telegraph, confirmed in writing by letter.
13. Notices. All communications hereunder will be in writing, and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to you at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel
or if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at Plaza Tower One, Suite 1200, 0000 Xxxxx Xxxxxxx'x Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx; provided,
however, that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed to such Underwriter at the address furnished by it.
14. Successors. This Agreement and the Terms Agreement will inure to
the benefit of and be binding upon the parties hereto and thereto, and their
respective successors and the officers and directors and controlling persons
referred to in Section 7, and no other person will have any right or obligation
hereunder or thereunder.
15. Representation of Underwriters. You will act for the several
Underwriters in connection with each Offering of Certificates governed by this
Agreement, and any action under this Agreement and any Terms Agreement taken by
you will be binding upon all the Underwriters identified in such Terms
Agreement.
16. Construction. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
FUND AMERICA INVESTORS CORPORATION II
By:
------------------------------
Name:
Title:
The foregoing Underwriting Agreement
hereby is confirmed and accepted
as of the date first above written.
BEAR, XXXXXXX & CO. INC.
By:
----------------------------
Title:
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EXHIBIT A
FUND AMERICA INVESTORS CORPORATION II
Pass-Through Certificates
FORM OF TERMS AGREEMENT
Dated: _________, 199_
To: FUND AMERICA INVESTORS CORPORATION II [AND _____________]
Re: Underwriting Agreement dated April __, l998
Series Designation: Series 19 __ - __
Class Designation Schedule:
Terms of the Certificates:
Original
Principal Interest Price to
Class Amount Rate Public(1)(2)
----- --------- -------- ------------
----------------------------
(1) Do not include if the Certificates will be offered from time to time
by the Underwriter in negotiated transactions at varying prices to be
determined at the time of sale.
(2) Plus accrued interest, if any, at the applicable rate from ______________.
Distribution Dates: The __th day of each month or, if such __th day is
not a business day, the next succeeding business day commencing _____________.
Certificate Rating:
-22-
23
Mortgage Assets: The initial amounts to be included in any Reserve Fund
and other accounts are as set forth, and the Mortgage Loans to be included
in the Trust Fund are as described, in Annex A hereto.
Purchase Price: The aggregate purchase price payable by the Underwriter
for the Certificates covered by this Agreement will be
$_________________. [Purchase price may also be separately stated by
class.]
Credit Enhancement:
[Include pool policies, letters of credit, bonds, subordination and
similar arrangements.]
Closing Date: ______, 19__, ____ a.m., N.Y. Time
The undersigned, agrees, subject to the terms and provisions of the
above-referenced Underwriting Agreement, which is incorporated herein in
its entirety and made a part hereof, to purchase the respective principal
amounts of the Classes of the above-referenced Series of Certificates set
forth [herein] [on Schedule I attached hereto].
BEAR, XXXXXXX & CO. INC.
By:
----------------------------
Senior Managing Director
[ADDITIONAL UNDERWRITERS]
By:
--------------------------
--------------------------
Title:
Accepted:
FUND AMERICA INVESTORS CORPORATION II
By:
-------------------------
-2-
24
Schedule I (for Multiple Underwriters)
Underwriters
Name Class Class Class Class Class
---- ----- ----- ----- ----- -----
Bear, Xxxxxxx $ $ $ $ $
& Co. Inc.
[Other
Underwriters]
----- ----- ----- ----- -----
Total
===== ===== ===== ===== =====
-3-
25
FUND AMERICA INVESTORS CORPORATION II
Pass-Through Certificates
TERMS AGREEMENT
Dated: April 28, 1998
To: FUND AMERICA INVESTORS CORPORATION II
Re: Underwriting Agreement dated April 28, 1998
Series Designation: Series 1998-A
Class Designation Schedule: Class 1A, Class 2A
Terms of the Certificates:
Original Principal Pass-Through
Class Amount Interest Rate
----- ------------------- ---------------
1A $23,500,002 (1)
2A $36,873,851 (1)
---------------------
(1) The effective per annum interest rate borne by either Class of
Certificates during each Interest Accrual Period with respect to a
Distribution Date will equal a fraction, expressed as a percentage
truncated at the fourth decimal place, the numerator of which is
equal to the aggregate amount in respect of interest paid on the
Pooled Certificates relating to each Class the related Interest
Accrual Period (after payment of the Trustee's Fee and subject to the
adjustments of certain amounts with respect to the Class 2A
Certificates as described in the applicable Prospectus Supplement)
multiplied by 12, and the denominator of which is the principal
amount of such Class of the Certificates immediately prior to such
Distribution Date. Under certain circumstances, the principal amount
of either Class of the Certificates could be paid in full while
interest would remain payable, in which case, the calculation of the
effective per annum interest rate borne by the Certificates would not
be meaningful.
26
Distribution Dates: With respect to each month, beginning in May 1998, the first
Business Day (as defined herein) after the 25th day of such month, or, if such
is not a Business Day, then on the first Business Day after the first Business
Day after the 25th day of each month. A "Business Day" means a day other than a
Saturday, a Sunday or a day on which banking institutions in New York, New York
or the city in which the corporate trust office of the Trustee is located are
authorized or obligated by law or executive order to be closed.
Certificate Rating: "Aaa" by Xxxxx'x Investors Service, Inc. and "AAA" by Fitch
IBCA, Inc.
Form of Certificates: Book-entry (The Depository Trust Company).
Trust Fund Assets: The Pooled Certificates and Treasury Securities to be
included in the Trust Fund are as described in Schedule A hereto.
Purchase Price: The aggregate purchase price payable by the Underwriter for the
Certificates covered by this Agreement will be 108.3% of the principal balance
of the Certificates plus accrued interest from April 1, 1998 to, but not
including, the Closing Date.
Closing Date: April 30, 1998, 9:00 a.m., New York time
Computational Materials and Term Sheets: The Underwriter has not prepared
Computational Materials, ABS Term Sheets, and/or Structural Term Sheets which
would be required to be filed by Fund America Investors Corporation II with the
Securities and Exchange Commission on Form 8-K.
Expenses: Notwithstanding anything to the contrary in the Underwriting
Agreement, the Underwriter will pay all expenses in connection with the offering
of the Securities, including, but not limited to, all the expenses included in
Section 5(g) of the Underwriting Agreement.
Information Furnished by the Underwriter: The Underwriter confirms that it has
furnished the information set forth in Schedule A hereto for use in the
applicable Prospectus Supplement.
Miscellaneous Matters: (a) The Pooling Agreement and the Schedule referred to in
the Underwriting Agreement shall be deemed to be references to the Pooling
Agreement dated as of April 1, 1998 between Fund America Investors Corporation
II, as seller, and State Street Bank & Trust Company, as trustee, and Schedule A
(attached thereto), respectively;
(b) Notices to the Underwriter shall be to the attention of Xxxxxxx
Xxxxx and notices to the Company shall be to the attention of Xxxxxx X.Xxxxxx.
(c) The payment of certain additional expenses will be governed by
the letter agreement dated April 28, 1998 between the Underwriter and the
Company.
2
27
The undersigned, as sole Underwriter, agrees, subject to the terms and
provisions of the above-referenced Underwriting Agreement, which is incorporated
herein in its entirety and made a part hereof, to purchase the principal amount
of the Class of the above-referenced Series of Certificates set forth herein.
BEAR, XXXXXXX & CO. INC.
By:
------------------------------
Name:
Title:
Accepted:
FUND AMERICA INVESTORS CORPORATION II
By:
------------------------------
Name:
Title:
3
28
SCHEDULE A
POOLED CERTIFICATES
Current Principal or
Full Name of Series % of Class Notional Balance
------------------------------------------------------ ---------- -------------------
POOLED XXXXXXX MAC CERTIFICATES
Multiclass Mortgage Securities, Series G063, Class A 21.25% $18,211,492.25
Multiclass Mortgage Securities, Series 2043, Class ZB 17.36% $12,150,000.00
POOLED XXXXXX XXX CERTIFICATES
Guaranteed REMIC Pass-Through Certificates, Xxxxxx
Xxx XXXXX Trust 1994-6, Class F 27.53% $38,255,036.32
POOLED NON-AGENCY CERTIFICATES
Fund America Investors Trust I
Collateral Mortgage Obligations, Series 1993-2,
Class A-1 3.41% $2,268,817.89
TREASURY SECURITIES
Amount to be Paid
Designation PT/IT at Maturity Due Date CUSIP No.
----------- ----- ----------------- ---------- ----------
United States Treasury Security PT $1,200,000 February 15, 2001 000000XX0
United States Treasury Security IT $6,000,000 February 15, 1999 000000XX0
United States Treasury Security IT $500,000 February 15, 2002 000000XX0
4
