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EXHIBIT 1.1
NATIONSBANC ASSET SECURITIES, INC.
ASSET BACKED CERTIFICATE
CLASS ____
UNDERWRITING AGREEMENT
_____, 199__
[Name and Address
of
Underwriter]
Re: NationsBanc Asset Securities, Inc., Asset Backed
Certificates, Series 199_-__
Ladies and Gentlemen:
Pursuant to this Underwriting Agreement (this "Agreement"), NationsBanc Asset
Securities, Inc., a Delaware corporation (the "Company"), proposes to sell to
the addressee hereof (the "Underwriter"), the principal amount of the securities
identified in Schedule I hereto (the "Securities"), to be issued under a pooling
and servicing agreement (the "Pooling Agreement") to be dated as of _______ 1,
199__, among the Company, as depositor (the "Depositor"), ____________________,
as servicer (the "Servicer"), and ________________________________, as trustee
(the "Trustee"). Capitalized terms used and not otherwise defined herein have
the respective meanings ascribed to such terms in the Pooling Agreement.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Underwriter that:
(a) The Company meets the requirements for use of
Form S-3 under the Securities Act of 1933, as amended (the "Act"), and
has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such Form (the file number of
which is set forth in Schedule I hereto), which has become effective,
for the registration under the Act of the Securities. Such registration
statement, as amended to the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1) under the Act and complies in
all other material respects with said Rule. The Company proposes to
file with the Commission pursuant to Rule 424 under the Act a
supplement to the form of prospectus included in such registration
statement relating to the Securities and the plan of distribution
thereof and has previously advised the Underwriter of all further
information with respect to the Company and the Securities to be set
forth therein. Such registration statement, including the exhibits
thereto, as amended to the date of this Agreement, is hereinafter
called the "Registration Statement"; such prospectus in the form in
which it appears in the
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Registration Statement is hereinafter called the "Basic Prospectus";
and such supplemented form of prospectus, in the form in which it shall
be filed with the Commission pursuant to Rule 424 (including the Basic
Prospectus as so supplemented) is hereinafter called the "Final
Prospectus." Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 hereinafter is called the
"Preliminary Final Prospectus." Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act") other than any information
contained in any Current Report (as defined in Section 5(b) below)
filed pursuant to Section 5(b) hereof or pursuant to any other
underwriting agreement entered into by the Company, on or before the
date of this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document
under the Exchange Act after the date of this Agreement, or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, and deemed to be incorporated
therein by reference other than any information contained in any
Current Report filed pursuant to Section 5(b) hereof or pursuant to any
other underwriting agreement entered into by the Company.
(b) As of the date hereof, when the Final Prospectus
is first filed pursuant to Rule 424 under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when
any supplement to the Final Prospectus is filed with the Commission and
at the Closing Date (as hereinafter defined), (i) the Registration
Statement, as amended as of any such time, and the Final Prospectus, as
amended or supplemented as of any such time, will comply in all
material respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder, (ii) the Registration
Statement, as amended as of any such time, will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading, and (iii) the Final Prospectus, as
amended or supplemented as of any such time, will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to (A) the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of the Underwriter specifically for use in connection with
the preparation of the Registration Statement and the Final Prospectus
or (B) any Current Report filed pursuant to Section 5(b) hereof.
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(c) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the State of
Delaware and has corporate and other power and authority to own its
properties and conduct its business, as now conducted by it, and to
enter into and perform its obligations under this Agreement and the
Pooling Agreement.
(d) The Company is not aware of (i) any request by
the Commission for any further amendment of the Registration Statement
or the Basic Prospectus or for any additional information or (ii) the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement.
(e) This Agreement has been duly authorized, executed
and delivered by the Company, and the Pooling Agreement, when delivered
by the Company, will have been duly authorized, executed and delivered
by the Company, and will constitute a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject, as to the enforcement of remedies, to
applicable bankruptcy, insolvency, reorganization, moratorium,
receivership and similar laws affecting creditors' rights generally and
to general principles of equity (regardless of whether the enforcement
of such remedies is considered in a proceeding in equity or at law).
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to the Underwriter, and the Underwriter agrees to
purchase from the Company, at the purchase price set forth on Schedule I hereto,
the principal amount of each class of the Securities set forth on Schedule I
hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at the office, on the date and at the time specified on
Schedule I hereto, which date and time may be postponed by agreement between the
Underwriter and the Company (such date and time of delivery and payment for the
Securities being herein referred to as the "Closing Date"). Delivery of the
Securities shall be made to the Underwriter against payment by the Underwriter
of the purchase price thereof in the manner set forth on Schedule I hereto. If
Schedule I indicates that the Securities are to be issued in book-entry form,
delivery of the Securities shall be made through the facilities of the
depository or depositories set forth on Schedule I. Alternatively, physical
certificates for the Securities shall be registered in such names and in such
denominations as the Underwriter may request not less than three full business
days in advance of the Closing Date.
The Company agrees to have the Securities available for
inspection, checking and, in the case of physical certificates, packaging by the
Underwriter in New York, New York, not later than 1:00 p.m., New York City time,
on the business day prior to the Closing Date.
4. Representations, Warranties and Agreements of the
Underwriter. The Underwriter represents and warrants to, and agrees with, the
Company that it proposes to
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offer the Securities for sale to the public as set forth in the Final
Prospectus, and all offers and sales of the Securities made by it shall be so
made in compliance with all applicable laws and regulations.
5. Agreements of the Company. The Company agrees with
the Underwriter that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus unless the Company has furnished the Underwriter a copy for
its review prior to filing and will not file any such proposed
amendment or supplement to which the Underwriter reasonably objects.
Subject to the foregoing sentence, the Company will cause the Final
Prospectus to be mailed to the Commission for filing pursuant to Rule
424 by first class certified or registered mail or by overnight courier
and will cause the Final Prospectus to be filed with the Commission
pursuant to said Rule. The Company will advise the Underwriter promptly
(i) when the Final Prospectus shall have been mailed to the Commission
for filing pursuant to Rule 424, (ii) when any amendment to the
Registration Statement relating to the Securities shall have become
effective, (iii) of any request by the Commission for any amendment of
the Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information relating to the
Securities, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order described in clause (iv) of the
preceding sentence and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) The Company will cause or, if appropriate, will
have caused any Computational Materials, Collateral Term Sheets and ABS
Term Sheets (each as defined in Section 10 below) with respect to the
Securities which are delivered by the Underwriter to the Company
pursuant to or as contemplated by Section 10 to be filed with the
Commission on a Current Report on Form 8-K (the "Current Report")
pursuant to Rule 13a-11 under the Exchange Act not later than, in each
such case, the business day immediately following the day on which such
Computational Materials, Collateral Term Sheets or ABS Term Sheets are
delivered to counsel for the Company by the Underwriter as provided in
Section 10, and will promptly advise the Underwriter when each such
Current Report has been so filed. Notwithstanding the preceding
sentences, the Company shall have no obligation to file materials
provided by the Underwriter pursuant to or as contemplated by Section
10 which, in the reasonable determination of the Company after making
reasonable efforts to consult with the Underwriter, are not required to
be filed pursuant to the No-Action Letters (as defined in Section 10
below), or which contain erroneous information or contain any
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untrue statement of a material fact or, which, when read in conjunction
with the Final Prospectus, 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, Collateral Term Sheets or ABS
Term Sheets provided by the Underwriter to the Company pursuant to
Section 10 hereof.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and file
with the Commission, subject to the first sentence of paragraph (a) of
this Section 5, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance
and will use its best efforts to cause any required post-effective
amendment to the Registration Statement containing such amendment to be
made effective as soon as possible.
(d) The Company will furnish to the Underwriter and
counsel for the Underwriter, without charge, executed copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto which shall become effective on or prior to the Closing Date
and, so long as delivery of a prospectus relating to the Securities by
the Underwriter or dealer may be required by the Act, as many copies of
any Preliminary Final Prospectus and the Final Prospectus and any
amendments thereof and supplements thereto as the Underwriter may
reasonably request. The Company will pay the expenses of printing all
documents relating to the initial offering of the Securities, provided
that any additional expenses incurred in connection with the
requirement of delivery of a market-making prospectus will be borne by
the Underwriter.
(e) The Company will arrange for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Underwriter may reasonably designate, will maintain such qualifications
in effect so long as required for the distribution of the Securities
and will arrange for the determination of the legality of the
Securities for purchase by institutional investors; provided, however,
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to general or unlimited service of process in
any jurisdiction where it is not now so subject.
6. Conditions to the Obligations of the Underwriter. The
obligation of the Underwriter to purchase the Securities shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the
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Closing Date (including the filing of any document incorporated by reference
therein) and as of the Closing Date, to the accuracy of the statements of the
Company made in any certificates delivered pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened; and the Final Prospectus shall have been filed or mailed
for filing with the Commission within the time period prescribed by the
Commission.
(b) The Company shall have furnished to the
Underwriter the opinion of [Cadwalader, Xxxxxxxxxx & Xxxx] [Xxxxxx &
Xxxxxxxx], counsel for the Company and the Underwriter, dated the
Closing Date, to the effect of paragraphs (iii), (vi), (vii), (ix) and
(xiii) below, and the opinion of Xxxxxx X. Xxxx, Xx., special counsel
to the Company, dated the Closing Date, to the effect of paragraphs
(i), (ii), (iv), (v), (viii), (x), (xi) and (xii) below:
(i) the Company is a duly incorporated
and validly existing corporation in good standing under the
laws of the State of Delaware, has the corporate power and
authority to own its properties and conduct its business as
described in the Final Prospectus;
(ii) the Company has no subsidiaries and
is not required to be qualified or licensed to do business as
a foreign corporation in any jurisdiction;
[(iii) assuming that the Securities are
rating at the time of transfer to the Underwriter in one of
the two highest rating categories by a nationally recognize
statistical rating organization, each such Security at such
time will be a "mortgage related security" as such term is
defined in Section 3(a)(41) of the Exchange Act;]
(iv) the Pooling Agreement has been duly
authorized, executed and delivered by the Company;
(v) the Securities have been duly
authorized by the Company;
(vi) upon due authorization, execution
and delivery by the parties thereto, the Pooling Agreement
will constitute a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with
its 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
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equity), and except that the enforcement of rights with
respect to indemnification and contribution obligations may be
limited by applicable law;
(vii) the Securities, when duly executed,
authenticated and delivered in the manner contemplated in the
Pooling Agreement and paid for by the Underwriter pursuant to
this Agreement, will be validly issued and outstanding and
entitled to the benefits of the Pooling Agreement;
(viii) to the best knowledge of such
counsel, there is no pending or threatened action, suit or
proceeding before any court or governmental agency, authority
or body or any arbitrator involving the Company of a character
required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and there
is no franchise, contract or other document of a character
required to be described in the Registration Statement or
Final Prospectus, or to be filed as an exhibit thereto, which
is not described or filed as required;
(ix) the Registration Statement has
become effective under the Act; to the best knowledge of such
counsel (a) no stop order suspending the effectiveness of the
Registration Statement with respect to the Securities has been
issued and no proceedings for that purpose have been
instituted or are pending or are threatened under the Act; and
(b) the Registration Statement, as of its effective date, and
the Final Prospectus, as of the date thereof, and each
revision or amendment thereof or supplement thereto relating
to the Securities, as of its effective date, appeared on their
respective faces to be appropriately responsive in all
material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder applicable to
such documents as of such respective dates; and, as of the
date of the Final Prospectus, the statements set forth in the
Final Prospectus under the headings "ERISA Considerations" and
"Federal Income Tax Consequences" were, to the extent that
they summarize matters of federal law or legal conclusions,
correct in all material respects;
(x) this Agreement has been duly
authorized, executed and delivered by the Company;
(xi) no consent, approval, authorization
or order of any court or governmental agency or body is
required for the consummation of the transactions contemplated
herein, except such as have been obtained under the Act and
such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriter and such other approvals
(specified in such opinion) as have been obtained;
(xii) neither the issue and sale of the
Securities, nor the consummation of any other of the
transactions herein contemplated nor the
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fulfillment of the terms hereof will conflict with, result in
a breach of, or constitute a default under the certificate of
incorporation or by-laws of the Company or, to the best
knowledge of such counsel, the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company is a party or by which it is bound, or any order or
regulation known to such counsel to be applicable to the
Company of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Company;
(xiii) the Pooling 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 Investment Company Act of 1940, as
amended.
Such opinion may express its reliance as to factual
matters on the representations and warranties made by, and on
certificates or other documents furnished by officer of, the parties to
this Agreement and the Pooling Agreement. Such opinion may be qualified
as an opinion only on the laws of the State of New York, the laws of
each state in which the writer of the opinion is admitted to practice
law and the Federal law of the United States. To the extent that such
firm relies upon the opinion of other counsel in rendering any portion
of its opinion, the opinion of such other counsel shall be attached to
and delivered with the opinion of such firm that is delivered to the
Underwriter.
(c) The Company shall have furnished to the
Underwriter a letter, dated the Closing Date, of [Cadwalader,
Xxxxxxxxxx & Xxxx] [Xxxxxx & Xxxxxxxx], counsel to the Company, to the
effect that in the course of such counsel's review of the Registration
Statement and the Final Prospectus and discussion of the same with
certain officers of the Company and its auditors, no facts came to the
attention of such counsel that caused such counsel to believe that the
Registration Statement, as of its effective date, or the Final
Prospectus, as of the date, or any revision or amendment thereof or
supplement thereto, as of its effective date, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
or misleading, or that the Final Prospectus, or any revision or
amendment thereof or supplement thereto filed prior to the date of such
opinion, as of the date of such opinion, contained any untrue statement
of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; it being understood that such
counsel need express no opinion as to any financial statements or other
financial, numerical or statistical data contained in the Registration
Statement or the Final Prospectus or any material incorporated by
reference in the Registration Statement or the Prospectus.
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(d) The Underwriter shall have received copies,
addressed to it or on which it is entitled to rely, of opinions of
counsel furnished to the rating agencies rating the Securities as set
forth on Schedule I hereto (the "Rating Agencies").
(e) The Company shall have furnished to the
Underwriter a certificate of the Company, signed by an authorized
officer thereof, and dated the Closing Date, to the effect that the
signer(s) of such certificate has carefully examined the Registration
Statement, the Final Prospectus and this Agreement and that to the best
of his or her knowledge:
(i) the representations and warranties
of the Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with the same
effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the
effectiveness of the Registration Statement, as amended, has
been issued and no proceedings for that purpose have been
instituted or threatened; and
(iii) since the respective dates as of
which information is given in the Final Prospectus, there has
been no material adverse change in the condition (financial or
other), earnings, business or properties of the Company,
whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in
the Final Prospectus.
(f) On the date hereof, Price Waterhouse, LLP and/or
any other firm of certified independent public accountants acceptable
to the Underwriter shall have furnished to the Underwriter a letter,
dated the date hereof, in form and substance satisfactory to the
Underwriter, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder, and stating in
effect that using the assumptions and methodology used by the Company,
all of which shall be described in such letter, they have recalculated
such numbers and percentages set forth in the Final Prospectus as the
Underwriter may reasonably request and as are agreed to by such
accountants, compared the results of their calculations to the
corresponding items in the Final Prospectus, and found each such number
and percentage set forth in the Final Prospectus to be in agreement
with the results of such calculations. To the extent historical
financial information with respect to the Company and/or historical
financial, delinquency or related information with respect to one or
more servicers is included in the Final Prospectus, such letter or
letters shall also relate to such information.
(g) The Securities shall have received the rating or
ratings from the Rating Agencies as set forth on Schedule I hereto.
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(h) Prior to the Closing Date, the Company shall have
furnished to the Underwriter such further information, certificates,
opinions and documents as the Underwriter may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriter and its counsel, this
Agreement and all obligations of the Underwriter hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriter. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph and confirmed in writing.
7. Reimbursement of Underwriter's Expenses. If the sale
of the Securities provided for herein is not consummated because any condition
to the obligations of the Underwriter set forth in Section 3 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by the Underwriter, the Company will reimburse
the Underwriter upon demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by it in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
the Underwriter and each person who controls the Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages, liabilities and actions, joint or several, to
which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law, in equity or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or cost of investigation 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 as originally filed or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon any omission or any alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse
each such indemnified party for any legal and other fees, costs and
expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company will 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 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 by or on behalf of the Underwriter
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
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any untrue statement or alleged untrue statement therein results (or is
alleged to have resulted) directly from an error (a "Collateral Error")
in the information concerning the Mortgage Loans furnished by the
Company to the Underwriter in writing or by electronic transmission
that was used in the preparation of any Computational Materials,
Collateral Term Sheets or ABS Term Sheets included in such Current
Report (or amendment or supplement thereof), (ii) such indemnity with
respect to the Basic Prospectus or any Preliminary Final Prospectus
shall not inure to the benefit of the Underwriter (or any person
controlling the Underwriter) if the person asserting any such loss,
claim, damage or liability purchased the Securities from the
Underwriter did not receive a copy of the Final Prospectus (or the
Final Prospectus as amended or supplemented) excluding documents
incorporated therein by reference, at or prior to the confirmation of
the sale of such Securities to such person in any case where such
delivery is required by the Act and the untrue statement or omission of
a material fact contained in the Basic Prospectus or any Preliminary
Final Prospectus was corrected in the Final Prospectus (or the Final
Prospectus as amended or supplemented and is found by a court of law or
equity to have caused the loss), and (iii) such indemnity with respect
to any Collateral Error shall not inure to the benefit of the
Underwriter (or any person controlling the Underwriter) if the person
asserting any loss, claim, damage or liability received any
Computational Materials, Collateral Term Sheets or ABS Term Sheets from
the Underwriter that were prepared on the basis of such Collateral
Error, and, prior to the time of confirmation of the sale of the
Securities to the person, the Company notified the Underwriter in
writing of the Collateral Error or provided in written or electronic
form information superseding or correcting such Collateral Error (in
any such case, a "Corrected Collateral Error"), and the Underwriter
failed to notify such person thereof or to deliver such person
corrected Computational Materials, Collateral Term Sheets and/or ABS
Term Sheets, as applicable. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) The Underwriter agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to the
Underwriter, but only with reference to (A) written information
relating to the Underwriter furnished to the Company by or on behalf of
the Underwriter specifically for use in the preparation of the
documents referred to in the foregoing indemnity, or (B) any
Computational Materials, Collateral Term Sheets or ABS Term Sheets
furnished to the Company by the Underwriter pursuant to or as
contemplated by Section 10 (except that no such indemnity shall be
available for any losses, claims, damages or liabilities, or actions in
respect thereof resulting from any Collateral Error, other than a
Corrected Collateral Error). This indemnity agreement will be in
addition to any liability which the Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the last
paragraph of the cover page and under the heading "Underwriting" or
"Plan of Distribution" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished in writing by or
on behalf of the Underwriter for inclusion in the documents
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referred to in the foregoing indemnity (other than the Computational
Materials, Collateral Term Sheets and/or ABS Term Sheets furnished to
the Company by the Underwriter).
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any action or
investigation, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section
8, notify the indemnifying party in writing of the commencement
thereof; provided, that the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 8. In case any
investigation is commenced by or against an indemnified party or any
such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and, to the extent that
it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified
party, to participate in the investigation and/or to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such investigation and/or action
include or are likely to include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded at some point during the investigation and/or action that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the
right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to
participate in the investigation and/or to assume the defense of such
action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under
this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Underwriter in the case
of subparagraph (a) and the Company in the case of subparagraph (b),
representing the indemnified parties under subparagraph (a) or (b), as
the case may be, who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that if clause (i) or
(iii) is applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph
(a) or (b) of this Section 8 is due
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in accordance with its terms but is for any reason held by a court to
be unavailable from the Company or the Underwriter on the grounds of
policy or otherwise, the Company and the Underwriter shall contribute
to the aggregate losses, claims, damages, liabilities and actions
(including legal and other fees, costs and expenses reasonably incurred
in connection with investigating or defending same) to which the
Company and the Underwriter may be subject, as follows:
(i) in the case of any losses, claims, damages
and liabilities (or actions in respect thereof) which do not arise out
of or are not based upon any untrue statement or omission of a material
fact in any Computational Materials, Collateral Term Sheets or ABS Term
Sheets, in such proportion so that the Underwriter is responsible for
that portion represented by the percentage that the underwriting
discount bears to the sum of such discount and the purchase price of
the Securities specified in Schedule I hereto and the Company is
responsible for the balance; provided, however, that in no case shall
the Underwriter be responsible under this subparagraph (i) for any
amount in excess of the underwriting discount applicable to the
Securities purchased by the Underwriter hereunder; and
(ii) in the case of any losses, claims, damages
and liabilities (or actions in respect thereof) which arise out of or
are based upon any untrue statement or omission of a material fact in
any Computational Materials, Collateral Term Sheets or ABS Term Sheets,
in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and the Underwriter 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. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact in such
Computational Materials, Collateral Term Sheets or ABS Term Sheets
results from information prepared by the Company on the one hand or the
Underwriter on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
Notwithstanding anything to the contrary in this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls the Underwriter within the meaning of either the Act or the Exchange
Act shall have the same rights to contribution as the Underwriter, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the preceding sentence of
this paragraph (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 paragraph (d), notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not
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relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
9. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriter set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof and this Section 9 shall survive the termination or
cancellation of this Agreement.
10. Computational Materials and ABS Term Sheets.
(a) Not later than 10:30 a.m., New York City time, on
a date no later than four business days before delivery of the Final
Prospectus to the Underwriter, the Underwriter shall deliver to the
Company five complete copies of all materials provided by the
Underwriter to prospective investors in the Securities which constitute
either (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, Xxxxxxx Acceptance
Corporation I, Xxxxxx, Peabody & 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") or
(ii) "ABS 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
together with the Xxxxxx Letters, the "No-Action Letters"), if the
filing of such materials with the Commission is a condition of the
relief granted in such letters. In the case of any such materials that
constitute "Collateral Term Sheets" within the meaning of the PSA
Letter, if such Collateral Term Sheets have not previously been
delivered to the Company as contemplated by Section 10(b)(i) below,
five complete copies of such Collateral Term Sheets shall be delivered
by the Underwriter to the Company no later than 10:30 a.m., New York
City time, on the first business day following the date on which such
Collateral Term Sheets were initially provided to a potential investor.
Each delivery of Computational Materials, Collateral Term Sheets and/or
ABS Term Sheets to the Company pursuant to this paragraph (a) shall be
effected by delivering four copies of such materials to counsel for the
Company on behalf of the Company at the address specified in Section 15
hereof and one copy of such materials to the Company.
(b) The Underwriter represents and warrants to and
agrees with the Company, as of the date hereof and as of the Closing
Date, that:
(i) if the Underwriter has provided any
Collateral Term Sheets to potential investors in the
Securities prior to the date hereof and if the
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filing of such materials with the Commission is a condition of
the relief granted in the PSA Letter, then in each such case
the Underwriter delivered four copies of such materials to
counsel for the Company on behalf of the Company at the
address specified in Section 15 hereof and one copy of such
materials to the Company no later than 10:30 a.m., New York
City time, on the first business day following the date on
which such materials were initially provided to a potential
investor;
(ii) the Computational Materials (either
in original, aggregated or consolidated form), Collateral Term
Sheets and ABS Term Sheets furnished to the Company pursuant
to Section 10(a) or as contemplated in Section 10(b)(i)
constitute all of the materials relating to the Securities
furnished by the Underwriter (whether in written, electronic
or other format) to prospective investors in the Securities
which are required to be filed with the Commission in
accordance with the No-Action Letters, and all Computational
Materials, Collateral Term Sheets and ABS Term Sheets provided
to potential investors in the Securities comply with the
requirements of the No-Action Letters;
(iii) on the respective dates any such
Computational Materials and/or ABS Term Sheets with respect to
the Securities referred to in Section 10(b)(ii) were last
furnished to each prospective investor, on the date of
delivery thereof to the Company pursuant to or as contemplated
by this Section 10 and on the Closing Date, such Computational
Materials, Collateral Term Sheets and/or ABS Term Sheets did
not and will not include any untrue statement of a material
fact, or, when read in conjunction with the Final Prospectus,
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(iv) at the time any Computational
Materials, Collateral Term Sheets or ABS Term Sheets with
respect to the Securities were furnished to a prospective
investor and on the date hereof, the Underwriter possessed,
and on the date of delivery of such materials to the Company
pursuant to or as contemplated by this Section 10 and on the
Closing Date, the Underwriter will possess, the capability,
knowledge, expertise, resources and systems of internal
control necessary to ensure that such Computational Materials,
Collateral Term Sheets and/or ABS Term Sheets conform to the
representations and warranties of the Underwriter contained in
subparagraphs (ii) and (iii) above of this paragraph (b);
(v) all Computational Materials,
Collateral Term Sheets and ABS Term Sheets with respect to the
Securities furnished to potential 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
Computational Materials, Collateral
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Term Sheets or ABS Term Sheets, is not responsible for the
accuracy thereof and has not authorized the dissemination
thereof;
(vi) all Collateral Term Sheets with
respect to the Securities furnished to potential investors
contained and will contain a legend, prominently displayed on
the first page thereof, indicating that the information
contained therein will be superseded by the description of the
Mortgage Loans contained in the Final Prospectus and, except
in the case of the initial Collateral Term Sheet, that such
information supersedes the information in all prior Collateral
Term Sheets; and
(vii) on and after the date hereof, the
Underwriter shall not deliver or authorize the delivery of any
Computational Materials, Collateral Term Sheets, ABS Term
Sheets or other materials relating to the Securities (whether
in written, electronic or other format) to any potential
investor unless such potential investor has received a Final
Prospectus prior to or at the same time as the delivery of
such Computational Materials, Collateral Term Sheets, ABS Term
Sheets or other materials.
Notwithstanding the foregoing, the Underwriter makes no representation or
warranty as to whether any Computational Materials, Collateral Term Sheets or
ABS Term Sheets with respect to the Securities included or will include any
untrue statement resulting directly from any Collateral Error (except any
Corrected Collateral Error, with respect to materials prepared after the receipt
by the Underwriter from the Company of notice of such Corrected Collateral Error
or materials superseding or correcting such Corrected Collateral Error).
(c) The Underwriter acknowledges and agrees that the
Company has not authorized and will not authorize the distribution of
any Computational Materials, Collateral Term Sheets or ABS Term Sheets
with respect to the Securities to any prospective investor, and agrees
that any such Computational Materials, Collateral Term Sheets and/or
ABS Term Sheets furnished to prospective investors shall include a
disclaimer in the form set forth in paragraph (b)(v) above. The
Underwriter agrees that it will not represent to potential investors
that any Computational Materials, Collateral Term Sheets and/or ABS
Term Sheets with respect to the Securities were prepared or
disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, it shall be
necessary to amend or supplement the Final Prospectus as a result of an
untrue statement of a material fact contained in any Computational
Materials, Collateral Term Sheets or ABS Term Sheets provided by the
Underwriter pursuant to or as contemplated by this Section 10 or the
omission to state therein a material fact required, when considered in
conjunction with the Final Prospectus, to be stated therein or
necessary to make the statements therein, when read in conjunction with
the Final Prospectus, not misleading, or if it shall be necessary to
amend or supplement any Current Report to comply with the Act or the
rules
-16-
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thereunder, the Underwriter, at its expense, 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. The Underwriter represents
and warrants to the Company, as of the date of delivery of such
amendment or supplement to the Company, that such amendment or
supplement will not include any untrue statement of a material fact or,
when read in conjunction with the Final Prospectus, omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. 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 Final Prospectus,
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 the Underwriter to the Company
pursuant to this paragraph (d)) or (ii) such filing is not required
under the Act.
(e) The Underwriter (at its own expense) further
agree to provide to the Company any accountants' letters obtained
relating to the Computational Materials, Collateral Term Sheets and/or
ABS Term Sheets, which accountants' letters shall be addressed to the
Company or shall state that the Company may rely thereon; provided,
however, that the Underwriter shall have no obligation to procure such
letter.
11. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Underwriter, by notice given to
the Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal or North Carolina authorities or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is such
as to make it, in the judgment of the Underwriter, impracticable to market the
Securities.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto, each person or entity, if any, who
controls the Company or the Underwriter (within the meaning of either Section 15
of the Act, of Section 20 of the Exchange Act) and their respective successors,
and assigns, and no other person will have any right or obligation hereunder.
13. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14. Miscellaneous.
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(a) This Agreement supersedes all prior or contemporaneous
agreements and understandings relating to the subject matter hereof.
(b) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated except by a writing signed by the party against
whom enforcement of such change, waiver, discharge or termination is sought.
(c) This Agreement may be signed in any number of counterparts
each of which shall be deemed an original, which taken together shall constitute
one and the same instrument.
(d) The headings of the Sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
15. Notices. All communications hereunder will be in writing
and effective only upon receipt and, if sent to the Underwriter, will be
delivered to [ ], Attention: [ ], or if sent to
the Company, will be delivered to the Company at XxxxxxxXxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000, in either case, with a copy to [ ].
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Underwriter.
Very truly yours,
NATIONSBANC ASSET SECURITIES, INC.
By:
-----------------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified on
Schedule I hereto.
[UNDERWRITER]
By:
--------------------------------
Name:
Title:
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SCHEDULE I
Underwriting Agreement dated ______, 199__
Registration Statement No:
Underwriter:
Title, Purchase Price and Description of Securities:
Title: NationsBanc Asset Securities, Inc. Asset Backed Certificates, Series
199__-___
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Principal Ratings by Method of
Class Amount and Delivery
----- ------ ---------- --------
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Rating Agencies:
___________________________("_____"); ______________________. ("_____")
Closing Time, Date and Location:
10:00 A.M. on _______, 199__ at the offices of [ ].
Depository:
Purchase Price: The Purchase Price for each Class of Securities will be ____%
of the principal amount thereof.
Payment Method: Immediately available funds.
SCH I-1
