Exhibit 1.1
XXXXX ASSET SECURITIZATION, INC.
Luminent Mortgage Trust 2006-7
Mortgage-Backed Certificates, Series 2006-7
UNDERWRITING AGREEMENT
December 27, 2006
Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Barclays Capital
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Xxxxx Asset Securitization, Inc., a Delaware corporation (the "Company"),
confirms its agreement to sell to Bear, Xxxxxxx & Co. Inc. (the "Lead
Underwriter") and Barclays Capital (the "Co-Underwriter") (collectively, the
"Underwriters"), all of Luminent Mortgage Trust 2006-7 (the "Trust"),
Mortgage-Backed Certificates, Series 2006-7, Class I-A-1, Class II-A-1, Class
II-A-2, Class II-A-3, Class II-B-1, Class II-B-2, Class II-B-3, Class II-B-4,
Class II-B-5, Class II-B-6 and Class II-B-7 (collectively, the "Underwritten
Securities"), and the purchase by the Underwriters, acting severally and not
jointly, of their respective Certificate Principal Balances of the Underwritten
Securities set forth opposite their names in Schedule I hereto. The Underwritten
Securities, together with the Class I-A-2, Class I-B-1, Class I-B-2, Class
I-B-3, Class I-B-4, Class I-C-1, Class I-C-2, Class II-C, Class I-P, Class II-P,
Class II-F, Class R and Class RX Certificates not sold to the Underwriters, will
evidence the entire beneficial interest in a pool of adjustable rate one- to
four-family residential mortgage loans (the "Mortgage Loans") as described in
the Prospectus Supplement (as hereinafter defined) acquired by the Company from
Maia Mortgage Finance Statutory Trust, a Maryland business trust (the "Seller").
The Certificates will be issued pursuant to a Pooling Agreement dated as of
December 1, 2006 (the "Pooling Agreement"), among the Company, the Seller, Xxxxx
Fargo Bank, N.A., as master servicer (the "Master Servicer") and securities
administrator (the "Securities Administrator"), and HSBC Bank USA, National
Association, as trustee (the "Trustee"). The Mortgage Loans will be serviced by
a number of servicers pursuant to various servicing agreements (the "Servicing
Agreements") assigned to the Trust. Custody of the Mortgage Loans will be
pursuant to a custody agreement (the "Custody Agreement") dated as of December
1, 2006 by and among the Trustee and Xxxxx Fargo Bank, N.A., as custodian. The
Supplemental Interest Trustee, on behalf of the Trust and the Class I
Certificateholders, will also enter a swap agreement (the "Swap Agreement") and
a cap agreement (the "Cap Agreement") with Bear, Xxxxxxx Financial Products,
Inc., as the counterparty (the "Swap Provider" and the "Cap Provider"), each
dated as of December 27, 2006.
At or prior to the time when sales to investors of the Certificates were
first made (the "Time of Sale"), the Company had prepared a free writing
prospectus, dated December 21, 2006, for distribution to prospective investors
(the information contained therein, together with information regarding the
price and interest rate of the Certificates, the "Time of Sale Information").
If, subsequent to the Time of Sale, the Company or any Underwriter determines
that such information included an untrue statement of material fact or omitted
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading and
have terminated their old purchase contracts and entered into new purchase
contracts with purchasers of the Certificates, then "Time of Sale Information"
will refer to the information available to purchasers at the time of entry into
the first such new purchase contract, including any information that corrects
such material misstatements or omissions and "Time of Sale" will refer to the
time and date on which such new purchase contracts were entered into.
This underwriting agreement (the "Agreement"), the Pooling Agreement, the
Custodial Agreement, the Servicing Agreement and the Cap Agreement are sometimes
referred to herein collectively as the "Transaction Agreements." The
Underwritten Securities will be issued in minimum denominations and will have
the terms set forth in the Pooling Agreement. Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Pooling Agreement.
1. Representations, Warranties and Covenants. As of the date hereof (or as
of such other date as may be specified in the relevant representation and
warranty), the Company represents and warrants to, and agrees with, each of the
Underwriters as follows:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-135084) on Form S-3
for the registration under the Securities Act of 1933, as amended (the
"Act"), of Mortgage Pass-Through Certificates and Mortgage-Backed Notes
(issuable in series), including the Certificates, a copy of which, as
amended to the date hereof, has heretofore been delivered to the
Underwriters. All conditions for the use of Form S-3 under the Act have
been satisfied. Such registration statement, including the exhibits
thereto, as amended to the date of this Agreement, is hereinafter called
the "Registration Statement"; the prospectus first required to be filed to
satisfy the condition set forth in Rule 172(c)(3) and pursuant to Rule
424(b) under the Act is hereinafter called the "Base Prospectus"; and such
supplement to the Base Prospectus, in the form required to be filed to
satisfy the condition set forth in Rule 172(c)(3) and pursuant to Rule
424(b) under the Act, is hereinafter called the "Prospectus Supplement"
and, collectively with the Base Prospectus, the "Prospectus." Any reference
herein to the Registration Statement, the Base Prospectus or the 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"), on or
before the date of this Agreement, or the issue date of the Base Prospectus
or the Prospectus, as the case may be; and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the Registration
Statement, the Base Prospectus or the 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 Base Prospectus or the
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Prospectus, as the case may be, and deemed to be incorporated therein by
reference. The Registration Statement has been declared effective by the
Commission under the Act; no order suspending the effectiveness of the
Registration Statement has been issued by the Commission and no proceeding
for that purpose has been initiated or, to the best knowledge of the
Company, threatened by the Commission;
(b) When the Prospectus is first filed pursuant to Rule 424 under the
Act, when, prior to the Closing Date, 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 Prospectus is filed with the Commission and at the
Closing Date, (i) the Registration Statement, as amended as of any such
time, and the Prospectus, as amended or supplemented as of any such time,
will comply in all material respects with the 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 Prospectus and
any static pool information referred to in the Time of Sale Information and
the Prospectus, as amended or supplemented as of any such time, under the
caption "Static Pool Information" but deemed to be excluded from the
Registration Statement and the Prospectus pursuant to Item 1105(d) of
Regulation AB issued under the Act (the "Static Pool Information"), 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 neither the Company nor the
Seller makes any representations or warranties as to the information
contained in or omitted from the Registration Statement or the Prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company through the
Lead Underwriter specifically for use in connection with the preparation of
the Registration Statement or the Prospectus. The parties agree that such
information consists solely of the information about the distribution and
marketing of the Certificates under the caption "Method of Distribution" in
the Prospectus Supplement (the "Underwriting Information");
(c) The Time of Sale Information, at the Time of Sale did not, and at
the Closing Date will not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representation and
warranty with respect to the Underwriting Information contained in or
omitted from the Time of Sale Information or any amendment thereof or
supplement thereto;
(d) Other than as set forth or contemplated in the Prospectus and the
Time of Sale Information, since the date as of which information is given
in the Registration Statement, the Time of Sale Information or the
Prospectus, there has not been any material adverse change or any
development involving a prospective material adverse change, in or
affecting the business, properties, prospects, management, financial
position, stockholders' equity or results of operations of the Company and
the Seller;
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(e) The Company has been duly formed and is validly existing as a
corporation in good standing under the laws of the State of Delaware. The
Seller has been duly formed and is validly existing as a business trust
under the laws of the State of Maryland. Each of the Company and the Seller
has the requisite organizational power to own its properties and to conduct
its business as presently conducted by it; and each of the Company and the
Seller is duly qualified to do business as a foreign corporation in good
standing and has all necessary certificates, licenses and permits in all
jurisdictions in which its ownership of property or the conduct of its
business as presently conducted by it requires such qualification;
(f) As of the Closing Date, the Certificates will conform in all
material respects to the description thereof contained in the Prospectus
and the Time of Sale Information, and the representations and warranties of
the Company in the Pooling Agreement will be true and correct in all
material respects;
(g) The Certificates, when validly authenticated, issued and delivered
in accordance with the Pooling Agreement, will be duly and validly issued
and outstanding and entitled to the benefits of the Pooling Agreement, and
immediately prior to the delivery of the Certificates to each Underwriter,
the Company will own the Certificates, and upon such delivery, such
Underwriter will acquire title thereto, free and clear of any lien, pledge,
encumbrance or other security interest other than one created or granted by
such Underwriter;
(h) This Agreement has been duly authorized, executed and delivered by
the Company and the Seller and, as of the Closing Date, the Transaction
Agreements to which the Company or the Seller is a party will have been
duly authorized, executed and delivered by the Company or the Company, as
applicable, and will conform in all material respects to the description
thereof contained in the Prospectus and the Time of Sale Information, and
assuming the valid execution thereof by the other parties thereto, each
Transaction Agreement will constitute a legal, valid and binding agreement
of the Company and the Seller, as applicable, enforceable in accordance
with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting the
enforcement of creditors' rights and by general equity principles;
(i) As of the Closing Date, the Transaction Agreements to which the
Company or the Seller is a party will conform in all material respects to
the description thereof contained in the Prospectus and the Time of Sale
Information;
(j) The execution, delivery and performance by the Company and the
Seller of each of the Transaction Agreements, the issuance and sale of the
Certificates and compliance by the Company and the Seller with the terms
thereof and the consummation of the transactions contemplated by the
Transaction Documents will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or the Seller, as
applicable, pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or the
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Seller is a party or by which the Company or the Seller is bound or to
which any of the property or assets of the Company or the Seller is
subject; (ii) result in any violation of the provisions of the charter,
by-laws or similar organizational documents of the Company or the Seller;
or (iii) result in the violation of any law or statute or any judgment,
order or regulation of any governmental authority, except, in the case of
clauses (i) and (iii) above, for any such conflict, breach or violation
that would not, individually or in the aggregate, have a material adverse
effect;
(k) No filing or registration with, notice to, or consent, approval,
authorization or order or other action of any court or governmental
authority or agency is required for the consummation by the Company or the
Seller of the transactions contemplated by the Transaction Agreements
(other than as required under state securities laws or Blue Sky laws, as to
which no representations and warranties are made by the Company), except
such as have been, or will have been, obtained under the Act prior to the
Closing Date, any filings under the Uniform Commercial Code, and any
recordations of the assignment of the Mortgage Loans to the Trustee or, if
applicable, to Mortgage Electronic Registration Systems, Inc. ("MERS") on
behalf of the Trustee, pursuant to the Pooling Agreement;
(l) There is no action, suit or proceeding before or by any court,
administrative or governmental agency, or other tribunal, domestic or
foreign, now pending to which the Company or the Seller is a party, or, to
the best of the Company's knowledge, threatened against the Company or the
Seller, which could reasonably result individually or in the aggregate in
any material adverse change in the condition (financial or otherwise),
earnings, affairs, regulatory situation or business prospects of the
Company or the Seller, or could reasonably interfere with or materially and
adversely affect the consummation of the transactions contemplated in the
Transaction Agreements;
(m) Upon the execution and delivery of the Pooling Agreement, (i) the
Seller will own the Mortgage Loans being sold to the Company, free and
clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim or
other security interest except to the extent permitted in the Pooling
Agreement (collectively, "Liens"); (ii) the Company will own the Mortgage
Loans being sold to the Trust, free of Liens, or will have a valid,
perfected, first-priority security interest therein, free of Liens;
(n) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of the Transaction Agreements and the
Certificates have been or will be paid by the Company or the Seller on or
prior to the Closing Date, except for fees for recording assignments of
Mortgage Loans to the Trustee or, if applicable, to MERS on behalf of the
Trustee, pursuant to the Pooling Agreement that have not yet been
completed, which fees will be paid by the Company or the Seller in
accordance with the Pooling Agreement;
(o) The Company is not an "investment company" or entity "controlled"
by an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended;
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(p) Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the general
affairs, management, financial condition, or results of operations of the
Company, otherwise than as set forth or contemplated in the Prospectus, as
supplemented or amended as of the Closing Date.
(q) The representations and warranties of the Company and the Seller
contained in the Transaction Documents are true and correct in all material
respects;
(r) Other than the Prospectus, the Company (including its agents and
representatives other than the Underwriters) has not made, used, prepared,
authorized, approved or referred to and will not make, use, prepare,
authorize, approve or refer to any "written communication" (as defined in
Rule 405 under the Act) that constitutes an offer to sell or solicitation
of an offer to buy the Certificates other than (i) information included in
the Time of Sale Information, (ii) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Act or Rule 134 under the
Act or (iii) other written communication approved in writing in advance by
the Lead Underwriter;
(s) Any Issuer Free Writing Prospectus (as defined in Section 4(f)(i))
included in the Time of Sale Information complied in all material respects
with the Act and has been, or will be filed in accordance with Rule 433(d)
under the Act (to the extent required thereby);
(t) The Company is not, and on the date on which the first bona fide
offer of the Certificates is made will not be, an "ineligible issuer," as
defined in Rule 405 under the Act;
(u) As of the Closing Date, this Agreement and the other Transaction
Agreements conform in all material respects to the descriptions thereof
contained in the Registration Statement and Prospectus;
(v) On the Closing Date, the Trust will be a New York common law
trust;
(w) It is not necessary to qualify the Pooling Agreement under the
Trust Indenture Act of 1939, as amended.
2. Purchase and Sale; Payment and Delivery.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell
to each Underwriter and each Underwriter agrees, severally and not jointly,
to purchase from the Company, the Underwritten Securities at the respective
prices set forth in Schedule I hereto.
(b) The Company understands that the Underwriters intend to make a
public offering of their respective portions of the Underwritten Securities
as soon after the effectiveness of this Agreement as in the judgment of the
Lead Underwriter is advisable, and initially to offer the Underwritten
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Securities on the terms set forth in the Time of Sale Information and the
Prospectus. The Company acknowledges and agrees that the Underwriters may
offer and sell the Underwritten Securities to or through any affiliate of
an Underwriter and that any such affiliate may offer and sell any
Underwritten Securities purchased by it to or through any Underwriter.
(c) The Underwritten Securities to be purchased by each Underwriter
hereunder, in book entry form, and in such authorized denominations and
registered in such names as the Lead Underwriter shall request, shall be
delivered by or on behalf of the Company to the Lead Underwriter through
the facilities of The Depository Trust Company ("DTC") for the account of
such Underwriter, against payment by or on behalf of such Underwriter of
the purchase price therefor by wire transfer of Federal (same-day) funds to
the account specified to the Lead Underwriter by the Company upon at least
forty-eight hours' prior notice. The Company will cause the certificates
representing the Underwritten Securities to be made available for checking
and packaging at least twenty-four hours prior to the Closing Date (as
defined below) with respect thereto at the office of the Lead Underwriter,
000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at the office of
DTC or its designated custodian, as the case may be. The time and date of
such delivery and payment shall be 10:00 a.m., New York City time, on the
Closing Date (unless another time and date shall be agreed to by the Lead
Underwriter and the Company). The time and date at which such payment and
delivery are actually made is hereinafter sometimes called the "Closing
Date."
3. Offering by Underwriters; Offering Communications; Free Writing
Prospectuses.
(a) It is understood by the parties hereto that the Underwriters
propose to offer the Underwritten Securities for sale to the public as set
forth in the Prospectus, and the Underwriters agree that all such offers
and sales shall be made in compliance with all applicable laws and
regulations.
(b) Each Underwriter further agrees that, on or prior to the Closing
Date, it shall provide the Company with a certificate, setting forth (a) in
the case of each class of Certificates, (i) if less than 10% of the
Certificate Principal Balance of such class of Certificates has been sold
to the public as of such date, the fair market value (but not less than
zero) of such class of Certificates as of the Closing Date, or (ii) if 10%
or more of such class of Certificates has been sold to the public as of
such date but no single price is paid for at least 10% of the aggregate
principal balance of such class of Certificates, then the weighted average
price at which the Certificates of such class were sold, expressed as a
percentage of the Certificate Principal Balance of such class of
Certificates sold, or (b) the first single price at which at least 10% of
the Certificate Principal Balance of such class of Certificates was sold to
the public, (c) the prepayment assumption used in pricing each class of
Certificates, and (d) such other information as to matters of fact as the
Company may reasonably request to enable it to comply with its reporting
requirements with respect to each class of Certificates to the extent such
information can in the good faith judgment of such Underwriter be
determined by it.
(c) The Underwriters shall convey or deliver any written communication
to any person (including through Bloomberg) in connection with the initial
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offering of the Underwritten Securities, only if such written communication
is preceded or accompanied by a prospectus satisfying the requirements of
Section 10(a) of the Act or only if such written communication (i) is made
in reliance on Rule 134 under the Act, (ii) constitutes a prospectus
satisfying the requirements of Rule 430B under the Act or (iii) constitutes
a "free writing prospectus," as defined in Rule 405 under the Act (a "Free
Writing Prospectus"). Without the prior written consent of the Company
(which consent may be withheld for any reason), the Underwriters shall not
convey or deliver in connection with the initial offering of the
Certificates any "ABS informational and computational material," as defined
in Item 1101(a) of Regulation AB under the Act and the Exchange Act ("ABS
Informational and Computational Material"), in reliance upon Rules 167 and
426 under the Act.
(d) (i) Each Underwriter shall deliver to the Company, no later than
two business days prior to the date of first use thereof, (A) any Free
Writing Prospectus prepared by or on behalf of such Underwriter that
contains any "issuer information," as defined in Rule 433(h)(2) under the
Act and footnote 271 of the Commission's Securities Offering Reform Release
No. 33-8591 ("Issuer Information"), and (B) any Free Writing Prospectus or
portion thereof that contains only a description of the final terms of the
Underwritten Securities.
(ii) Notwithstanding the provisions of Section 3(d)(i), any Free Writing
Prospectus described therein that contains only ABS Informational and
Computational Material may be delivered by an Underwriter to the Company
not later than the later of (a) two business days prior to the due date for
filing of the Prospectus pursuant to Rule 424(b) under the Act or (b) the
date of first use of such Free Writing Prospectus.
(e) Each Underwriter represents and warrants to the Company severally
and not jointly that the Free Writing Prospectuses to be furnished to the
Company by such Underwriter pursuant to Section 3(d)(i) or (ii) will
constitute all Free Writing Prospectuses of the type described therein that
were furnished to prospective investors by such Underwriter in connection
with its offer and sale of the Certificates. Each Underwriter further
represents and warrants that it has not delivered any Free Writing
Prospectuses to prospective investors other than the Free Writing
Prospectus dated December 21, 2006 and Term Sheets that contain only ABS
Informational and Computational Materials.
(f) The Company agrees to file with the Commission the following:
(i) Any Free Writing Prospectus that constitutes an "issuer free
writing prospectus," as defined in Rule 433(h)(1) under the Act (an
"Issuer Free Writing Prospectus");
(ii) Any Free Writing Prospectus or portion thereof delivered by
an Underwriter to the Company pursuant to Section 3(d) hereof; and
(iii) Any Free Writing Prospectus for which the Company or any
person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a person
unaffiliated with the Company or any other offering participant that
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is in the business of publishing, radio or television broadcasting or
otherwise disseminating communications.
(g) Any Free Writing Prospectus required to be filed pursuant to
Section 3(f) by the Company shall be filed with the Commission not
later than the date of first use of the Free Writing Prospectus,
except that:
(i) any Free Writing Prospectus or portion thereof required
to be filed that contains only the description of the final terms
of the Certificates may be filed by the Company within two days
of the later of the date such final terms have been established
for all classes of Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required
to be filed that contains only ABS Informational and
Computational Material may be filed by the Company with the
Commission not later than the later of the due date for filing
the final Prospectus relating to the Certificates pursuant to
Rule 424(b) under the Act or two business days after the first
use of such Free Writing Prospectus;
(iii) any Free Writing Prospectus required to be filed
pursuant to Section 3(f)(iii) may, if no payment has been made or
consideration has been given by or on behalf of the Company for
the Free Writing Prospectus or its dissemination, be filed by the
Company with the Commission not later than four business days
after the Company becomes aware of the publication, radio or
television broadcast or other dissemination of the Free Writing
Prospectus; and
(iv) the Company shall not be required to file (A) Issuer
Information contained in any Free Writing Prospectus of an
offering participant other than the Trust, if such information is
included or incorporated by reference in a prospectus or Free
Writing Prospectus previously filed with the Commission that
relates to the offering of the Certificates, or (B) any Free
Writing Prospectus or portion thereof that contains a description
of the Certificates or the offering of the Certificates which
does not reflect the final terms thereof.
(h) Each Underwriter shall provide to the Company for filing with the
Commission any Free Writing Prospectus that is used or referred to by it
and distributed by or on behalf of such Underwriter in a manner reasonably
designed to lead to its broad, unrestricted dissemination not later than
the date of the first use of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Section 3(h), each Underwriter
shall provide to the Company for filing with the Commission any Free
Writing Prospectus for which such Underwriter or any person acting on its
behalf provided, authorized or approved information that is prepared and
published or disseminated by a person unaffiliated with the Company or any
other offering participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating written communications
and for which no payment was made or consideration given by or on behalf of
the Company or any other offering participant, not later than four business
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days after such Underwriter becomes aware of the publication, radio or
television broadcast or other dissemination of the Free Writing Prospectus.
(j) Notwithstanding the provisions of Sections 3(f) and 3(i), neither
the Company nor any Underwriter shall be required to file any Free Writing
Prospectus that does not contain substantive changes from or additions to a
Free Writing Prospectus previously filed with the Commission.
(k) The Company and each Underwriter each agree that each Free Writing
Prospectus prepared by such Underwriter shall contain the following legend,
or a substantially similar legend that complies with Rule 433 under the
Act:
The depositor has filed a registration statement (including
a prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read
the prospectus in that registration statement and other
documents the depositor has filed with the SEC for more
complete information about the issuer and this offering. You
may get these documents for free by visiting XXXXX on the
SEC Web site at xxx.xxx.xxx. Alternatively, the depositor,
any underwriter or any dealer participating in the offering
will arrange to send you the prospectus if you request it by
calling toll-free 0-000-000-0000.
The Company and each Underwriter each agree that any Free Writing
Prospectus prepared by such Underwriter and that is not an Issuer Free
Writing Prospectus or that does not contain Issuer Information shall also
contain the following legend:
Neither the issuer of the securities nor any of its
affiliates prepared, provided, approved or verified any
statistical or numerical information presented herein,
although that information may be based in part on loan level
data provided by the issuer or its affiliates.
(l) In the event that the Company becomes aware that, as of the Time
of Sale, any Issuer Free Writing Prospectus contains any untrue statement
of a material fact or omits to state a material fact necessary in order to
make the statements contained therein (when read in conjunction with the
Time of Sale Information), in light of the circumstances under which they
were made, not misleading (a "Defective Issuer Free Writing Prospectus"),
the Company shall notify each Underwriter within one business day after
discovery and the Company shall, if requested by such Underwriter, prepare
and deliver to such Underwriter a Free Writing Prospectus that corrects the
material misstatement or omission in the Defective Issuer Free Writing
Prospectus (such corrected Issuer Free Writing Prospectus, a "Corrected
Issuer Free Writing Prospectus").
(m) In the event that an Underwriter becomes aware that, as of the
Time of Sale, any Free Writing Prospectus prepared by or on behalf of such
Underwriter delivered to an investor in any Underwritten Securities
contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained therein
(when read in conjunction with the Time of Sale Information), in light of
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the circumstances under which they were made, not misleading, when
considered in conjunction with the Time of Sale Information (together with
a Defective Issuer Free Writing Prospectus, a "Defective Free Writing
Prospectus"), such Underwriter shall notify the Company thereof within one
business day after discovery.
(n) Each Underwriter shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was a Free Writing
Prospectus prepared by or on behalf of such Underwriter, prepare a
Free Writing Prospectus which corrects the material misstatement in or
omission from the Defective Free Writing Prospectus (together with a
Corrected Issuer Free Writing Prospectus, a "Corrected Free Writing
Prospectus");
(ii) deliver the Corrected Free Writing Prospectus to each
investor which received the Defective Free Writing Prospectus prior to
entering into a contract of sale with such investor;
(iii) notify such investor in a prominent fashion that the prior
contract of sale with the investor has been terminated, and of the
investor's rights as a result of termination of such agreement;
(iv) provide such investor with an opportunity to affirmatively
agree to purchase the Underwritten Securities on the terms described
in the Corrected Free Writing Prospectus; and
(v) comply with any other requirements for reformation of the
original contract of sale with such investor, as described in Section
IV.A.2.c of the Commission's Securities Offering Reform Release No.
33-8591.
(o) The Company and each Underwriter agree to retain all Free Writing
Prospectuses that they have used and that are not required to be filed
pursuant to this Section 4 for a period of three years following the
initial bona fide offering of the Underwritten Securities.
(p) Each Underwriter covenants with the Company that after the
Prospectus is available such Underwriter shall not distribute any written
information concerning the Underwritten Securities to a prospective
purchaser of Certificates unless such information is preceded or
accompanied by the Prospectus.
(q) Each Underwriter represents and agrees that:
(i) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated an invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the Financial Services and Markets Act) received by it
in connection with the issue or sale of the Underwritten Securities in
circumstances in which Section 21(1) of the Financial Services and
Markets Act does not apply to the Issuer;
11
(ii) it has complied and will comply with all applicable
provisions of the Financial Services and Markets Act with respect to
anything done by it in relation to the Underwritten Securities in,
from or otherwise involving the United Kingdom; and
(iii) in relation to each Member State of the European Economic
Area which has implemented the Prospectus Directive (each, a "Relevant
Member State"), with effect from and including the date on which the
Prospectus Directive is implemented in that Relevant Member State (the
"Relevant Implementation Date") it has not made and will not make an
offer of Underwritten Securities to the public in that Relevant Member
State prior to the publication of a prospectus in relation to the
Underwritten Securities which has been approved by the competent
authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, all in accordance
with the Prospectus Directive, except that it may, with effect from
and including the Relevant Implementation Date, make an offer of the
Underwritten Securities to the public in that Relevant Member State at
any time:
(x) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in securities;
(y) to any legal entity which has two or more of (1) an average
of at least 250 employees during the last financial year; (2) a total
balance sheet of more than (euro)43,000,000 and (3) an annual net
turnover of more than (euro)50,000,000, as shown in its last annual or
consolidated accounts; or
(z) in any other circumstances which do not require the
publication by the Issuer of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of this provision, the expression an "offer of securities
to the public" in relation to any Underwritten Securities in any Relevant Member
State means the communication in any form and by any means of sufficient
information on the terms of the offer and the securities to be offered so as to
enable an investor to decide to purchase or subscribe the securities, as the
same may be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State and the expression "Prospectus
Directive" means Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
4. Certain Covenants.
The Company hereby agrees with each Underwriter:
(a) That the Company shall cooperate with the Lead Underwriter and
legal counsel for the Underwriters and furnish such information as may be
required to qualify or register the Underwritten Securities for sale under
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(or obtain exemptions from the application of) the state securities or blue
sky laws of those jurisdictions designated by the Lead Underwriter; that
the Company shall comply with such laws and shall continue such
qualifications, registrations and exemptions in effect so long as required
for the distribution of the Underwritten Securities; provided that the
Company shall not be required to qualify as a foreign corporation or to
take any action that would subject it to general service of process in any
such jurisdiction where it is not presently qualified or where it would be
subject to taxation as a foreign corporation; and that the Company shall
use its best efforts to prevent the suspension of the qualification or
registration of (or any such exemption relating to) the Underwritten
Securities for offering, sale or trading in any jurisdiction and will
advise the Lead Underwriter promptly of such suspension or any initiation
or threat of any proceeding for any such purpose, and that in the event of
the issuance of any order suspending such qualification, registration or
exemption, the Company shall use its best efforts to obtain the withdrawal
thereof at the earliest possible moment;
(b) That if, at the time this Agreement is executed and delivered, it
is necessary for a post-effective amendment to the Registration Statement
to be declared effective before the offering of the Underwritten Securities
may commence, the Company will endeavor to cause such post-effective
amendment to become effective as soon as possible;
(c) To prepare the Prospectus in a form approved by the Underwriters
and to cause to be transmitted to the Commission for filing pursuant to
Rule 424(b) of the Securities Act Regulations by means reasonably
calculated to result in filing with the Commission pursuant to such Rule;
which Prospectus and Issuer Free Writing Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
version transmitted to the Commission for filing via XXXXX, except to the
extent permitted by Regulation S-T;
(d) The Company will furnish to each Underwriter, from time to time
during the period when a prospectus relating to the Underwritten Securities
is required to be delivered under the Securities Act, such number of copies
of the Prospectus and each Free Writing Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the Securities Act or the Exchange Act or the respective
applicable rules and regulations of the Commission thereunder;
(e) To furnish a copy of each proposed Free Writing Prospectus to the
Lead Underwriter and counsel for the Underwriters and obtain the consent of
the Lead Underwriter prior to referring to, using or filing with the
Commission any Free Writing Prospectus pursuant to Rule 433(d) under the
Securities Act, other than the free writing prospectus constituting part of
the Time of Sale Information;
(f) To comply with the requirements of Section 3 hereof and Rules 164
and 433 of the Securities Act Regulations applicable to any Issuer Free
Writing Prospectus, including timely filing pursuant to Rule 433(d) with
the Commission (by means reasonably calculated to result in filing with the
Commission pursuant to such Rule), legending and record keeping, as
applicable;
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(g) That, for a period of 90 days after the date of this Agreement or
such earlier date as each Underwriter shall have resold all of the
Underwritten Securities underwritten by it, the Company shall promptly
advise the Lead Underwriter in writing (i) of the receipt of any comments
of, or requests for additional or supplemental information from, the
Commission or any request by the Commission for amendments or supplements
to the Registration Statement, any Issuer Free Writing Prospectus or the
Prospectus, (ii) of the time and date of any filing of any post-effective
amendment to the Registration Statement or any amendment or supplement to
any Issuer Free Writing Prospectus or the Prospectus, (iii) of the time and
date that any post-effective amendment to the Registration Statement
becomes effective and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or of any order preventing or suspending
the use of any Issuer Free Writing Prospectus or the Prospectus; and, if
the Commission shall enter any such stop order at any time, the Company
will use its best efforts to obtain the lifting of such order at the
earliest possible moment; the Company shall, within such period, advise the
Lead Underwriter promptly of any proposal to prepare, use, authorize,
approve or file any amendment or supplement to the Registration Statement,
any Issuer Free Writing Prospectus or the Prospectus, shall furnish to the
Lead Underwriter for review a copy of each proposed amendment or supplement
a reasonable amount of time prior to such proposed filing or use, as the
case may be, and the Company will not prepare, use, authorize, approve,
refer to or file any such Issuer Free Writing Prospectus or file any such
amendment or supplement or use any such Prospectus to which the Lead
Underwriter shall reasonably object; additionally, the Company agrees that
it shall comply with the provisions of Rules 424(b) under the Securities
Act and will use its reasonable efforts to confirm that any filings made by
the Company under such Rule 424(b) were received in a timely manner by the
Commission;
(h) To furnish to the Lead Underwriter for a period of five years from
the date of this Agreement (i) as soon as available, copies of all annual,
quarterly and current reports or other communications supplied to holders
of Underwritten Securities, (ii) as soon as practicable after the filing
thereof, copies of all reports filed by the Company with the Commission or
any securities exchange and (iii) such other information as the Lead
Underwriter may reasonably request regarding the Company;
(i) To advise the Lead Underwriter promptly of the happening of any
event known to the Company within the time during which a Prospectus
relating to the Underwritten Securities (or in lieu thereof the notice
referred to in Rule 173(a) under the Securities Act Regulations) is
required to be delivered under the Securities Act Regulations which, in the
judgment of the Company or in the reasonable opinion of the Lead
Underwriter or legal counsel for the Underwriters, (A) would require the
making of any change in the Prospectus or the Time of Sale Information then
being used so that the Prospectus or Time of Sale Information would not, at
the time it is delivered to a purchaser, include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (B) as a result
of which any Issuer Free Writing Prospectus conflicted or would conflict
with the information contained in the Registration Statement relating to
the Underwritten Securities, or (C) if it is necessary at any time to amend
14
or supplement the Prospectus or the Time of Sale Information to comply with
any law and, during such time, to promptly prepare and furnish to the
Underwriters copies of the proposed amendment or supplement before filing
any such amendment or supplement with the Commission and thereafter
promptly furnish at the Company's own expense to the Underwriters and to
dealers, copies in such quantities and at such locations as the Lead
Underwriter may from time to time reasonably request of an appropriate
amendment or supplement to the Prospectus or the Time of Sale Information
so that the Prospectus or the Time of Sale Information as so amended or
supplemented will not, in the light of the circumstances when it (or in
lieu thereof the notice referred to in Rule 173(a) under the Securities Act
Regulations) is so delivered, be misleading, or in the case of any Issuer
Free Writing Prospectus, conflict with the information contained in the
Registration Statement, or so that the Prospectus or the Time of Sale
Information, as amended or supplemented, will comply with the law;
(j) To file promptly with the Commission any amendment or supplement
to the Registration Statement, any Free Writing Prospectus or the
Prospectus that may, in the judgment of the Company or the Lead
Underwriter, be required by the Securities Act or requested by the
Commission;
(k) That, prior to filing with the Commission any amendment or
supplement to the Registration Statement, any Issuer Free Writing
Prospectus or the Prospectus, the Company shall furnish to the Lead
Underwriter for review a copy of each such proposed amendment or
supplement, and the Company shall not file any such proposed amendment or
supplement to which the Lead Underwriter reasonably objects;
(l) To furnish to the Lead Underwriter, not less than two business
days before filing with the Commission during the period referred to in
paragraph (g) above, a copy of any document proposed to be filed with the
Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and
during the period of five years hereafter to file all such documents and
reports in the manner and within the time periods required by the Exchange
Act and the Exchange Act Regulations;
(m) Not to, and to use its best efforts to cause its officers,
directors and affiliates not to, (A) take, directly or indirectly prior to
termination of the underwriting syndicate contemplated by this Agreement,
any action designed to stabilize or manipulate the price of any security of
the Company, or which may cause or result in, or which might in the future
reasonably be expected to cause or result in, the stabilization or
manipulation of the price of any security of the Company, to facilitate the
sale or resale of any of the Underwritten Securities, (B) sell, bid for,
purchase or pay anyone (other than the Underwriters as disclosed in the
each of the Time of Sale Information and Prospectus) any compensation for
soliciting purchases of the Underwritten Securities or (C) pay or agree to
pay to any person any compensation for soliciting any order to purchase any
other securities;
(n) That the Company will comply with all of the provisions of any
undertakings in the Registration Statement and apply the net proceeds from
the sale of the Underwritten Securities in the manner set forth therein and
in the Prospectus;
15
(o) That the Company shall not invest or otherwise use the proceeds
received by the Company from its sale of the Underwritten Securities in
such a manner as would require the Company to register as an investment
company under the Investment Company Act; and
(p) To the extent, if any, that any rating provided with respect to
the Underwritten Securities by the applicable rating agency is conditional
upon the furnishing of documents or the taking of any actions by the
Company or any of its affiliates, the Company, shall furnish, or cause to
be furnished, such documents and take, or cause to be taken, any such other
actions.
5. Payment of Expenses.
(a) The Company agrees to pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated hereunder are consummated or this Agreement is
terminated, including expenses, fees and taxes in connection with:
(i) the preparation and filing of the Registration Statement
(including financial statements, exhibits, schedules, consents and
certificates of experts), each Prospectus, any Issuer Free Writing
Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriters
and to dealers (including costs of mailing and shipment);
(ii) the preparation, issuance and delivery of the certificates
for the Underwritten Securities to the Underwriters, including any
transfer taxes or duties payable upon the sale of the Underwritten
Securities to the Underwriters;
(iii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Underwritten Securities
to the Underwriters,
(iv) all fees and expenses of the Company's counsel, independent
public or certified public accountants and other advisors;
(v) any fees and expenses of any rating agency issuing a rating
in respect of the Underwritten Securities;
(vi) the printing of this Agreement and any dealer agreements and
furnishing of copies of each to the Underwriters and to dealers
(including costs of mailing and shipment);
(vii) the qualification of the Underwritten Securities for
offering and sale under state laws that the Company and the Lead
Underwriter have mutually agreed are appropriate and the determination
of their eligibility for investment under state law as aforesaid
(including the legal fees and filing fees and other disbursements of
counsel for the Underwriters) and the printing and furnishing of
copies of any blue sky surveys or legal investment surveys to the
Underwriters and to dealers;
16
(viii) the fees and expenses of any transfer agent or registrar
for the Underwritten Securities and miscellaneous expenses referred to
in the Registration Statement;
(ix) making road show presentations with respect to the offering
of the Underwritten Securities (if applicable);
(x) preparing and distributing copies of the Transaction
Agreements for the Lead Underwriter and its legal counsel; and
(xi) the performance of the Company's other obligations
hereunder.
(b) The Company agrees to reimburse the Lead Underwriter for its
reasonable out-of-pocket expenses in connection with the performance of its
activities under this Agreement, including, but not limited to, costs such
as printing, facsimile, courier service, direct computer expenses,
accommodations and travel, but excluding the fees and expenses of the
Underwriters' outside legal counsel and any other advisors, accountants,
appraisers, etc. (other than the fees and expenses of counsel with respect
to state securities or blue sky laws, which shall be reimbursed by the
Company pursuant to the provisions of subsection (a) above).
(c) If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (such as
printing, facsimile, courier service, direct computer expenses,
accommodations, travel and the fees and disbursements of Underwriters'
counsel) and any other advisors, accountants, appraisers, etc. reasonably
incurred by such Underwriters in connection with this Agreement or the
transactions contemplated herein.
6. Conditions of the Underwriters' Obligations.
The obligations of the Underwriters hereunder to purchase Underwritten
Securities at the Closing Date are subject to the accuracy of the
representations and warranties on the part of the Company hereunder on the date
hereof, at the Time of Sale and at the Closing Date, the performance by the
Company of its covenants and other obligations hereunder and to the satisfaction
of the following further conditions at the Closing Date:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened by the Commission;
and the Prospectus Supplement shall have been filed or transmitted for
filing by means reasonably calculated to result in a filing with the
Commission pursuant to Rule 424(b) under the Act;
(b) Since the Time of Sale Information, there shall have been no
material adverse change in the condition of the Company or the Seller that,
17
in the judgment of the Underwriters, impairs the investment quality of the
Underwritten Securities so as to make it impracticable to market the
Underwritten Securities on the terms and in the manner contemplated in the
Prospectus;
(c) (i) the representations and warranties of the Company in this
Agreement and all other Transaction Agreements shall be true and correct;
(ii) the Company shall have complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
hereunder and under each other Transaction Agreement at or prior to
the Closing Date; and
(iii) no event shall have occurred that, with notice or passage
of time, would constitute a default under any of the Transaction
Agreements to which the Company is a party.
The Company shall have delivered to the Underwriters a certificate dated
the Closing Date of the President, a Senior Vice President, a Vice President or
the Chief Financial Officer of the Company to the effect that each condition set
forth in clauses (a), (b) and (c)(i), (ii), and (iii) above has, to the best of
his or her knowledge after reasonable investigation, been satisfied;
(d) The Underwriters shall have received the opinions of Xxxxxx &
Xxxxxxxx LLP, counsel for the Company and the Seller, dated the Closing
Date, in the form customary for similar transactions (i) as to the tax
status of the transaction and the disclosure with respect thereto; (ii) as
to the status of the Company and the Seller, and the enforceability of the
Transaction Agreements and various other matters; and (iii) as to the "true
sale" of the Mortgage Loans and the non-consolidation of the Seller with
the Company, and the Company with the Trust. The Underwriters shall also
have received a negative assurance letter from such counsel, dated the
Closing Date, as to the information contained in the Registration
Statement, Prospectus and Time of Sale Information;
(e) The Underwriters shall have received the opinion of counsel for
the Master Servicer and Securities Administrator, dated the Closing Date,
as to its incorporation and the execution and delivery of the Transaction
Agreements to which it is a party. The Underwriters shall also have
received (a) a certificate, dated the Closing Date, of an officer of the
Master Servicer in which such officer shall state that, to the best of such
officer's knowledge after reasonable investigation: (i) the Master Servicer
is not an affiliate of any other entity listed as a transaction party in
the Prospectus Supplement, other than as previously disclosed in writing to
the Company, (ii) the information in the Prospectus Supplement related to
the Master Servicer (the "Master Servicer Disclosure") is true and correct
in all material respects and nothing has come to his or her attention that
that would lead such officer to believe that the Master Servicer Disclosure
contains any untrue statement of material fact or omits to state a material
fact necessary to make the statements therein not misleading and (b) a
certificate, dated the Closing Date of an officer of the Securities
Administrator in which such officer shall state that, to the best of such
officer's knowledge after reasonable investigation: (i) the Securities
Administrator is not an affiliate of any other entity listed as a
transaction party in the Prospectus Supplement, other than as previously
disclosed in writing to the Company, (ii) the information in the Prospectus
18
Supplement related to the Securities Administrator (the "Securities
Administrator Disclosure") is true and correct in all material respects and
nothing has come to his or her attention that that would lead such officer
to believe that the Securities Administrator Disclosure contains any untrue
statement of material fact or omits to state a material fact necessary to
make the statements therein not misleading;
(f) The Underwriters shall have received (a) a certificate, dated the
Closing Date of an officer of such originator in which such officer shall
state that, to the best of such officer's knowledge after reasonable
investigation: (i) such originator is not an affiliate of any other entity
listed as a transaction party in the Prospectus Supplement, other than as
previously disclosed in writing to the Company, (ii) the information in the
Prospectus Supplement related to such originator, including the
underwriting guidelines (the "Originator Disclosure") is true and correct
in all material respects and nothing has come to his or her attention that
that would lead such officer to believe that the Originator Disclosure
contains any untrue statement of material fact or omits to state a material
fact necessary to make the statements therein not misleading;
(g) The Underwriters shall have received (a) a certificate, dated the
Closing Date of an officer of such servicer in which such officer shall
state that, to the best of such officer's knowledge after reasonable
investigation: (i) such servicer is not an affiliate of any other entity
listed as a transaction party in the Prospectus Supplement, other than as
previously disclosed in writing to the Company, (ii) the information in the
Prospectus Supplement related to such servicer (the "Servicer Disclosure")
is true and correct in all material respects and nothing has come to his or
her attention that that would lead such officer to believe that the
Servicer Disclosure contains any untrue statement of material fact or omits
to state a material fact necessary to make the statements therein not
misleading;
(h) The Underwriters shall have received the opinion of counsel (which
may be in-house) to the counterparties to the Swap Agreement and Cap
Agreement as to their respective incorporation and execution and delivery
of the Transaction Agreements to which each is a party. The Underwriters
shall also have received (a) a certificate, dated the Closing Date of an
officer of the counterparty in which such officer shall state that, to the
best of such officer's knowledge after reasonable investigation: (i) the
counterparty is not an affiliate of any other entity listed as a
transaction party in the Prospectus Supplement, other than as previously
disclosed in writing to the Company, (ii) the information in the Prospectus
Supplement related to the Swap Provider or Cap Provider (as applicable, the
"Counterparty Disclosure") is true and correct in all material respects and
nothing has come to his or her attention that that would lead such officer
to believe that the Counterparty Disclosure contains any untrue statement
of material fact or omits to state a material fact necessary to make the
statements therein not misleading;
(i) The Underwriters shall have received the opinion of counsel to the
Trustee, dated the Closing Date, as to the incorporation and the execution
and delivery of the Transaction Agreements to which it is a party. The
Underwriters shall also have received a certificate dated the Closing Date
of an officer of the Trustee in which such officer shall state that, to the
19
best of such officer's knowledge after reasonable investigation, the
Trustee is not an affiliate of any other entity listed as a transaction
party in the Prospectus Supplement;
(j) The Underwriters shall have received the opinion of their counsel,
dated the Closing Date, in form and substance satisfactory to the
Underwriters;
(k) The Underwriters shall have received from Deloitte & Touche LLP,
certified public accountants, a letter, dated the date hereof and
satisfactory in form and substance to such Underwriter and such
Underwriter's counsel, to the effect that they have performed certain
specified procedures, all of which have been agreed to by such Underwriter,
as a result of which they determined that certain information of an
accounting, financial or statistical nature, set forth in the Time of Sale
Information and Prospectus Supplement under the captions "Description of
the Mortgage Loans," "Static Pool Information," "Description of the
Underwritten Securities," and "Yields, Prepayment and Weighted Average Life
Considerations," agrees with the records of the Company and the Seller or
any information provided to Deloitte & Touche LLP by or on behalf of the
Company, excluding any questions of legal interpretation;
(l) The Certificates shall have received the respective ratings set
forth on page (iv) of the Prospectus Supplement;
(m) The Underwriters shall have received evidence satisfactory to the
Lead Underwriter and counsel to the Underwriters that, on or before the
Closing Date, UCC-1 financing statements have been or are being filed (a)
in the office of the Secretary of State of the State of Maryland reflecting
the transfer of the interest of the Seller in the Mortgage Loans and the
proceeds thereof to the Company, and (b) in the office of the Secretary of
State of the State of Delaware the transfer of the interest of the Company
in the Mortgage Loans and the proceeds thereof to the Trust, and the pledge
of such interest to the Trustee for the benefit of the Certificateholders;
and
(n) The Company shall have furnished to each Underwriter such further
information, certificates and documents as such Underwriter may reasonably
have requested, and all proceedings in connection with the transactions
contemplated by this Agreement and all documents incident thereto shall be
in all material respects satisfactory in form and substance in their
reasonable judgment, to each Underwriter and its counsel.
7. Termination.
The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of the Lead Underwriter, at any time
prior to the Closing Date:
(a) If any of the conditions specified in Section 6 shall not have
been fulfilled when and as required by this Agreement to be fulfilled; or
(b) If there has been, in the judgment of the Lead Underwriter, since
the respective dates as of which information is given in the Registration
Statement, the Prospectus or the Time of Sale Information, any material
20
adverse change, or any development involving a prospective material adverse
change, or any comparable adverse change with respect to the Seller or the
Company, whether or not arising in the ordinary course of business; or
(c) If there has occurred any outbreak or escalation of national or
international hostilities, other national or international calamity or
crisis (including without limitation any terrorist or similar attack), any
change in the United States or international financial markets, or any
substantial change in United States' or international economic, political,
financial or other conditions, the effect of which on the financial markets
of the United States is such as to make it, in the judgment of the Lead
Underwriter, impracticable or inadvisable to market the Underwritten
Securities in the manner and on the terms described in each of the Time of
Sale Information and the Prospectus or enforce contracts for the sale of
the Underwritten Securities; or
(d) Any action has been taken by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which, in
the reasonable opinion of the Lead Underwriter, has a material adverse
effect on the securities markets in the United States; or
(e) the Company or the Seller shall have sustained a loss by strike,
fire, flood, earthquake, accident or other calamity of such character as in
the judgment of the Lead Underwriter may interfere materially with the
conduct of the business and operations of the Company or the Seller
regardless of whether or not such loss shall have been insured.
If the Lead Underwriter elects to terminate this Agreement as provided in
this Section 7, the Company and the Underwriters shall be notified promptly by
telephone, promptly confirmed by facsimile.
If the sale to the Underwriters of the Underwritten Securities, as
contemplated by this Agreement, is not carried out by the Underwriters for any
reason permitted under this Agreement or if such sale is not carried out because
the Company shall be unable to comply in all material respects with any of the
terms of this Agreement, the Company shall not be under any obligation or
liability under this Agreement (except to the extent provided in Sections 5 and
9 hereof) and the Underwriters shall be under no obligation or liability to the
Company under this Agreement (except to the extent provided in Section 9 hereof)
or to one another hereunder.
8. Increase in Underwriters' Commitments.
If any Underwriter shall default at the Closing Date in its obligation to
take up and pay for the Underwritten Securities to be purchased by it under this
Agreement on such date, the Lead Underwriter shall have the right, but not the
obligation, within 36 hours after such default, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Underwritten Securities which such
Underwriter shall have agreed but failed to take up and pay for (the "Defaulted
Securities"). Absent the completion of such arrangements within such 36-hour
period, (i) if the total number of Defaulted Securities does not exceed 10% of
the total number of Underwritten Securities to be purchased on such date, each
non-defaulting Underwriter shall take up and pay for (in addition to the number
21
of Underwritten Securities which it is otherwise obligated to purchase on such
date pursuant to this Agreement) the portion of the total number of Underwritten
Securities agreed to be purchased by the defaulting Underwriter on such date in
the proportion that its underwriting obligations hereunder bears to the
underwriting obligations of all non-defaulting Underwriters; and (ii) if the
total number of Defaulted Securities exceeds 10% of the total number of
Underwritten Securities to be purchased on such date, the Lead Underwriter may
terminate this Agreement by notice to the Company, without liability of any
party to any other party except that the provisions of Sections 5 and 9 hereof
shall at all times be effective and shall survive such termination.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Underwritten Securities hereunder on such date unless all of the
Underwritten Securities to be purchased on such date are purchased on such date
by the Underwriters (or by substituted Underwriters selected by the Lead
Underwriter with the approval of the Company or selected by the Company with the
approval of the Lead Underwriter).
If a new Underwriter or Underwriters are substituted for a defaulting
Underwriter in accordance with the foregoing provision, the Company or the
non-defaulting Underwriters shall have the right to postpone the Closing Date
for a period not exceeding seven business days in order that any necessary
changes in the Registration Statement, the Prospectus, the Time of Sale
Information and other documents may be effected.
The term "Underwriter" as used in this Agreement shall refer to and include
any Underwriter substituted under this Section 8 with the same effect as if such
substituted Underwriter had originally been named in this Agreement.
9. Indemnity and Contribution by the Company and the Underwriters.
(a) The Company and the Seller, jointly and severally, agree to
indemnify and hold harmless each Underwriter, each officer and director of
each Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (or actions in respect thereof) that arise out of or are based
upon any (a) (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration
of the Certificates as originally filed or in any amendment thereof, or in
the Base Prospectus or the Prospectus or the Time of Sale Information or
the Static Pool Information, 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, in light of the circumstances under which
they were made, not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any Issuer Free Writing
Prospectus or any Issuer Information contained in any Free Writing
Prospectus prepared by or on behalf of any Underwriter or in any Free
Writing Prospectus which is required to be filed pursuant to Section 3(f)
or Section 3(h), or the omission or alleged omission to state a material
fact required to make the statements therein, in light of the circumstances
under which they were made, not misleading, which was not corrected by
22
Corrective Information subsequently supplied by the Company to such
Underwriter within a reasonable period of time prior to the Time of Sale,
and (iii) any breach of the representation and warranty in Section 1(s),
and will reimburse each Underwriter and any officer, director or
controlling person for any legal or other expenses reasonably incurred by
such Underwriter or such officer, director or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, except insofar as such
losses, claims, damages, or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission in reliance
upon and in conformity with any information with respect to which each
Underwriter has agreed to indemnify the Company pursuant to Section 9(b)
hereof.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers
who signs 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 indemnity set forth in Section 9(a) above from the
Company and the Seller to the Underwriters, but only with reference to any
untrue statements or alleged untrue statements of a material fact, or
omissions or alleged omissions to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, in the Underwriting Information.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to either Section 9(a) or 9(b) hereof, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing, but the
omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability that the indemnifying party may have
to any indemnified party hereunder except to the extent such indemnifying
party has been materially prejudiced thereby, and the indemnifying party,
upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
and any others that the indemnifying party may designate in such proceeding
and shall pay the reasonable fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the reasonable fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel, (ii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the named parties
to any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. In any case described in
subclauses (i), (ii) or (iii) of the immediately preceding sentence, the
fees and disbursements of counsel for the indemnified party shall be paid
by the indemnifying party. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings
23
involving the same general allegations in the same jurisdiction, be liable
for the reasonable fees and expenses of more than one separate firm (plus
one local counsel, as necessary) for all such indemnified parties. Such
firm shall be designated in writing by the relevant Underwriter, in the
case of parties indemnified pursuant to Section 9(a) hereof and by the
Company or the Seller, in the case of parties indemnified pursuant to
Section 9(b) hereof. The indemnifying party may, at its option, at any time
upon written notice to the indemnified party, assume the defense of any
proceeding and may designate counsel reasonably satisfactory to the
indemnified party in connection therewith; provided that the counsel so
designated would have no actual or potential conflict of interest in
connection with such representation. Unless it shall assume the defense of
any proceeding the indemnifying party shall not be liable for any
settlement of any proceeding, effected without its written consent, which
consent shall not be unreasonably withheld, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss
or liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated herein, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (y) such settlement is entered into
more than 90 days after receipt by such indemnifying party of the aforesaid
request and (z) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement (A) does not include a statement
as to, or admission of, fault, culpability or a failure to act by or on
behalf of any such indemnified party and (B) includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
(d) If the indemnification provided for in this Article 9 is
unavailable to an indemnified party under Section 9(a) or 9(b) hereof or is
insufficient in respect of any losses, claims, damages, expenses or
liabilities referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages, expenses or liabilities, in such proportion as is appropriate to
reflect (i) the relative benefits received by the Company on the one hand
and the related Underwriter on the other from the offering of the
Certificates or (ii) if the allocation provided by clause (a) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the related
Underwriter on the other in connection with the statements or omissions or
alleged statements or alleged omissions that resulted in such losses,
claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and by the related Underwriter on the other shall be in the
same proportions that the purchase price paid by the related Underwriter to
the Company for the Certificates ("Net Proceeds") bears to the excess of
(a) the purchase prices paid by investors to each Underwriter for the
Certificates (the "Public Offering Price") over (b) Net Proceeds. The
relative fault of the Company on the one hand and of the related
24
Underwriter on the other shall be determined by reference to, among other
things, whether the untrue or allegedly untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the related Underwriter and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation or by any other method of allocation that does not take
account of the considerations referred to in Section 9(d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, expenses and liabilities referred to in this Section 9 shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim except where the
indemnified party is required to bear such expenses pursuant to Section
9(d), which expenses the indemnifying party shall pay as and when incurred,
at the request of the indemnified party, to the extent such expenses are
required to be paid by such indemnifying party under this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the
total aggregate Public Offering Price of the Certificates underwritten and
distributed to the public by such Underwriter exceeds the related Net
Proceeds. In the event that any expenses so paid by the indemnifying party
are subsequently determined not to be required to be borne by the
indemnifying party hereunder, the party that received such payment shall
promptly refund the amount so paid to the party that made such payment. 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.
(f) The indemnity and contribution agreements contained in this
Section 9 and the representations and warranties of the Company and the
Seller set forth in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by the Underwriters or on behalf of the Underwriters or
any person controlling any Underwriter or by or on behalf of the Company
and its respective directors or officers or any person controlling the
Company and (iii) acceptance of and payment for any of the Underwritten
Securities.
10. Survival.
The respective indemnities, agreements, representations, warranties and
other statements of the Company, of its officers and directors and of the
several Underwriters 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 any Underwriter or the Company, or any of its partners, officers or directors
or any controlling person, as the case may be, and will survive delivery of and
payment for the Underwritten Securities sold hereunder and any termination of
this Agreement.
25
11. Notices.
Except as otherwise herein provided, all statements, requests, notices and
agreements shall be in writing or by telegram and, if to the Underwriters, shall
be sufficient in all respects if delivered to Barclays Capital, 000 Xxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, XX 00000; if to the Company, shall be sufficient in all
respects if delivered to the Company at the offices of the Company at Xxxxx
Asset Securitization, Inc., 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: President.
12. Governing Law; Headings.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK. The section headings in this Agreement have been
inserted as a matter of convenience of reference and are not a part of this
Agreement.
13. Part Unenforceability.
The invalidity or unenforceability of any Section, paragraph or provision
of this Agreement shall not affect the validity or enforceability of any other
Section, paragraph or provision hereof. If any Section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
14. Parties at Interest.
The Agreement herein set forth has been and is made solely for the benefit
of the Underwriters, the Company, and the controlling persons, directors and
officers referred to in Sections 9 and 10 hereof, and their respective
successors, assigns, executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from any
of the Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
15. Role of Underwriters.
The Company acknowledges and agrees that the Underwriters are acting solely
in the capacity of an arm's length contractual counterparty to the Company and
the Seller with respect to the offering of the Underwritten Securities
contemplated hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an agent of, the
Company, the Seller, or any other person. Additionally, no Underwriter is
advising the Company, the Seller, or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The Company
and the Seller shall each consult with its own advisors concerning such matters
and shall be responsible for making their own independent investigation and
appraisal of the transactions contemplated hereby, and the Underwriters shall
have no responsibility or liability to the Company or the Seller with respect
thereto. Any review by the Underwriters of the Company, the Seller, the
transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the Company or the Seller.
26
16. Entire Agreement; Amendments, Modifications and Waivers.
This Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter
hereof. This Agreement may not be amended or modified unless in writing by all
of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to
benefit.
17. Counterparts and Facsimile Signatures.
This Agreement may be signed by the parties in counterparts which together
shall constitute one and the same agreement among the parties. A facsimile
signature shall constitute an original signature for all purposes.
27
If the foregoing correctly sets forth the understanding among the parties
to this Underwriting Agreement, please so indicate in the space provided below
for the purpose, whereupon this Underwriting Agreement shall constitute a
binding agreement among the parties hereto.
Very truly yours,
XXXXX ASSET SECURITIZATION, INC.
By: /s/ X. Xxxxxxxxx Xxxxx, Jr.
---------------------------
Name: X. Xxxxxxxxx Xxxxx, Jr.
Title: President
MAIA MORTGAGE FINANCE
STATUTORY TRUST
By: /s/ Xxxxxxxxxxx X. Xxxx
-----------------------
Name: Xxxxxxxxxxx X. Xxxx
Title: Trustee & President
Accepted and agreed to as
of the date first above written:
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxx Xxxxxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Managing Director
BARCLAYS CAPITAL
By: /s/ Xxxxxx Xxx
--------------
Name: Xxxxxx Xxx
Title: Associate Director
Signature page to Underwriting Agreement - XXX 2006-7
Schedule I
To Underwriting Agreement
Underwriting Allocation
Class of Certificates Allocation Purchase Price (%)
Bear Xxxxxxx Barclays Capital
I-A-1 $201,261,300 $35,516,700 100.00000
II-A-1 249,140,950 43,966,050 99.93750
II-A-2 124,570,050 21,982,950 100.00000
II-A-3 41,523,350 7,327,650 100.00000
II-B-1 10,549,350, 1,861,650 99.87500
II-B-2 4,488,850 792,150 100.00000
II-B-3 2,469,250 435,750 100.00000
II-B-4 2,244,850 396,150 100.00000
II-B-5 2,244,850 396,150 100.00000
II-B-6 2,244,850 396,150 100.00000
II-B-7 2,244,850 396,150 100.00000
