1
EXHIBIT 1.1
UNION PLANTERS MORTGAGE FINANCE CORP.
[MORTGAGE PASS-THROUGH CERTIFICATES]
[COLLATERALIZED MORTGAGE BONDS]
UNDERWRITING AGREEMENT
__________ __, 199_
[Lead Underwriter]
[Names of Other Co-Managers]
c/o [Lead Underwriter]
[Address]
Ladies and Gentlemen:
Union Planters Mortgage Finance Corp., a Delaware corporation (the
"Company") proposes to sell to you (the "Underwriters"), the [Mortgage
Pass-Through Certificates][Collateralized Mortgage Bonds] of the series and
classes, and in the respective original principal or notional, as the case may
be, amounts or percentage interests, set forth in Schedule I hereto (the
"Offered Securities"), evidencing ownership interests in a trust consisting of
[describe assets] to be acquired by the Company (the "Assets") and related
property (collectively, the "Trust Fund"). The Assets will be acquired by the
Company on the Closing Date (as defined herein) from the seller (the "Seller")
specified in the Prospectus Supplement (as defined herein) pursuant to a
purchase agreement (the "Asset Purchase Agreement") dated the date hereof. The
Assets will be of the type and will have the characteristics described in the
Prospectus Supplement, subject to the variances, ranges, minimums and maximums
set forth in the Prospectus Supplement, and will have the aggregate principal
balance set forth in the Prospectus Supplement, subject to an upward or downward
variance in principal balance, not to exceed the percentage set forth in the
Prospectus Supplement.
The Offered Securities, together with the other classes of
[certificates][bonds] of the series specified on Schedule II hereto (the
"Private Securities," and collectively with the Offered Securities, the
"Securities") are to be issued under a [pooling and servicing agreement (the
"Pooling and Servicing Agreement")][trust agreement (the "Trust Agreement") and
indenture (the "Indenture"), as applicable], dated as of the Cut-Off Date (as
defined in the Prospectus Supplement), among the [describe applicable parties].
The Offered Securities of each class will be issued in the minimum denominations
and will have
2
the terms set forth in the Prospectus Supplement. Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed thereto in
the [Pooling and Servicing Agreement][Trust Agreement][Indenture].
1. Representations and Warranties. The Company represents
and warrants to and agrees with each of the Underwriters that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-______)
on Form S-11 for the registration under the Securities Act of 1933, as
amended (the "Act"), of Mortgage Pass-Through Certificates and
Collateralized Mortgage Bonds (issuable in series), including the
Securities, which registration statement has become effective, and a
copy of which, as amended to the date hereof, has heretofore been
delivered to you. The Company proposes to file with the Commission
pursuant to Rule 424(b) under the rules and regulations of the
Commission under the Act (the "1933 Act Regulations") a supplement
dated ______________ (the "Prospectus Supplement"), to the prospectus
dated ________________ (the "Basic Prospectus"), relating to the
Offered Securities and the method of distribution thereof. Such
registration statement (No. 333-______) including exhibits thereto and
any information incorporated therein by reference including
"Computational Materials" and "ABS Term Sheets" (collectively, the
"Computational Materials and ABS Term Sheets") as defined in the
No-Action Letter of May 20, 1994 issued by the Commission to Xxxxxx,
Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated
and Xxxxxx Structured Asset Corporation, the No-Action Letter of May
27, 1994 issued by the Commission to the Public Securities Association
and the No-Action Letter of March 9, 1995 issued by the Commission to
the Public Securities Association (the "SEC No-Action Letters"), as
amended at the date hereof, is hereinafter called the "Registration
Statement"; and the Basic Prospectus and the Prospectus Supplement and
any information incorporated therein by reference including
Computational Materials and ABS Terms Sheets, together with any
amendment thereof or supplement thereto authorized by the Company on or
prior to the Closing Date for use in connection with the offering of
the Securities, are hereinafter called the "Prospectus". Any
preliminary form of the Prospectus Supplement which has heretofore been
filed pursuant to Rule 424, or prior to the effective date of the
Registration Statement pursuant to Rule 402(a), or 424(a) is
hereinafter called a "Preliminary Prospectus Supplement."
(ii) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement
is in effect, and no proceedings for such purpose are pending or, to
the Company's knowledge, threatened by
2
3
the Commission.
(iii) The Registration Statement and the Prospectus, as of the date
of the Prospectus Supplement, conform, and the Registration Statement
as of the effective date (the "Effective Date") and the Prospectus, as
of its date, each as revised, amended or supplemented and filed with
the Commission prior to the termination of the offering of the Offered
Securities, complied in all material respects to the requirements of
the Act and the 1933 Act Regulations, and the Registration Statement,
as of the Effective Date, did not, and as of the Closing Date, will
not, contain any untrue statement of a material fact or and did not and
will not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the
Prospectus, as of the date of the Prospectus Supplement did not, and as
of the Closing Date, will not contain any untrue statement of a
material fact and did not and will not 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 representations or warranties as to
the information contained in the Prospectus or any revision or
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through __________________ specifically for use in
connection with the preparation of the Prospectus or any revision or
amendment thereof or supplement thereto, and any information in any
Computational Materials or ABS Term Sheets required to be provided by
any Underwriter to the Company pursuant to Section 4.2, except to the
extent that such information constitutes Pool Information. As used
herein, "Pool Information means information with respect to the assumed
characteristics of the Assets and administrative and servicing fees.
The Company acknowledges that the Underwriter Information constitutes
the only information furnished in writing by you or on your behalf for
use in connection with the preparation of the Registration Statement or
the Prospectus Supplement.
(iv) At or prior to the Closing Date, the direction by the Company
to the Trustee to execute, authenticate and deliver the Offered
Securities will have been duly authorized by the Company, and the
Offered Securities, when executed and authenticated in accordance with
the [Pooling and Servicing Agreement][Indenture or Trust Agreement, as
applicable], and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement will be duly and validly
issued and outstanding and entitled to the benefits of such Agreement.
[Each Security of the classes indicated to be "mortgage related
securities" under the heading "___________________" in the Prospectus
Supplement will,
3
4
when issued, be a "mortgage related security" as such term is defined
in Section 3(a)(41) of the Exchange Act.]
(v) This Agreement has been duly authorized, executed and
delivered by the Company. At or prior to the Closing Date, the
[Pooling and Servicing Agreement][Indenture and Trust Agreement] and
Asset Purchase Agreement will have been duly authorized, executed and
delivered by the Company and will conform in all material respects to
the descriptions thereof contained in the Prospectus and, assuming the
valid execution and delivery thereof by the other parties thereto, the
[Pooling and Servicing Agreement][Indenture and Trust Agreement, as
applicable] and the Asset Purchase Agreement will constitute a legal,
valid and binding agreement of the Company enforceable in accordance
with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights generally, by general principles of equity and by the effect of
the exercise by the Trustee of certain remedial provisions, including
waivers, against the Assets.
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own its properties
and conduct its business as described in the Prospectus and to enter
into and perform its obligations under the [Pooling and Servicing
Agreement][the Trust Agreement, the Indenture or the Asset Purchase
Agreement, as applicable] and this Agreement.
(vii) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as a part of any amendment thereto, or
filed pursuant to Rule 424 or Rule 462 under the Act, complied as to
form, when so filed, in all material respects with the Act and the
rules and regulations of the Commission thereunder.
(viii) Neither the execution and delivery by the Company of, nor the
performance by the Company of its obligations under, this Agreement,
the [Pooling and Servicing Agreement][Indenture or Trust Agreement] or
the Asset Purchase Agreement will contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company
that is material to the Company or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any subsidiary, and no consent, approval, authorization or order of,
or qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this Agreement,
the [Pooling and Servicing Agreement][Indenture or Trust Agreement] or
the Asset Purchase Agreement, except such as may be required by the
4
5
securities or "blue sky" laws of the various states in connection with
the offer and sale of the Offered Securities.
(ix) There are no legal or governmental proceedings pending or
threatened to which the Company is a party or to which any of the
properties of the Company are subject that are required to be described
in the Registration Statement or the Prospectus and that are not so
described, nor are there any statutes, regulations, contracts or other
documents required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(x) At the time of execution and delivery of the [Pooling and
Servicing Agreement][Indenture][Trust Agreement] and the Asset Purchase
Agreement, (1) the Company will own the Assets being transferred to the
Trust Fund pursuant thereto, free and clear of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens"), except to the extent permitted in the related
agreement, and will not have assigned to any person other than the
Trust Fund any of its right, title or interest in the Assets, (2) the
Company will have the power and authority to transfer the Assets to the
Trust Fund and to transfer the Offered Securities to you, (3) upon
execution and delivery to the Trustee of the [Pooling and Servicing
Agreement][Indenture and Trust Agreement] and the Asset Purchase
Agreement, and delivery of the Securities to the Company, the Trust
Fund will own the Assets free of Liens other than Liens permitted by
the related agreement or created or granted by you and (4) upon payment
and delivery of the Offered Securities to you, you will acquire
ownership of the Offered Securities, free of Liens other than Liens
permitted by the related agreement or created or granted by you.
(xi) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement,
the [Pooling and Servicing Agreement][Indenture and Trust Agreement]
and Asset Purchase Agreement and the Securities have been or will be
paid by the Company at or prior to the Closing Date.
(xii) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company, since ____________.
(xiii) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such
5
6
terms are defined in the Investment Company Act of 1940, as amended.
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, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, the respective actual or notional, as the case may
be, amounts or percentage interests set forth in Schedule I hereto in the
respective classes of Offered Securities at the respective purchase price for
each such class set forth therein.
3. Delivery and Payment. The Offered Securities shall be delivered at
the office, on the date and at the time specified in, Schedule II attached
hereto, which place, date and time may be changed by agreement between the
Underwriters and the Company (such date and time of delivery of and payment for
such Offered Securities being hereinafter referred to as the "Closing Date").
Delivery of the [Class __] Securities (which [Class __] Securities shall also be
referred to herein as the "DTC Registered Securities") shall be made to you
through The Depository Trust Company ("DTC") and delivery of the [Class __]
Securities (collectively, the "Definitive Securities") shall be made in
registered, certified form, in each case against payment by you of the purchase
prices thereof to or upon the order of the Company by wire transfer in
immediately available funds. The Definitive Securities shall be registered in
such names and in such denominations as you may request not less than two
business days in advance of the Closing Date. The Company agrees to have the
Definitive Securities available for inspection, checking and packaging by you 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. Offering by Underwriters.
4.1 It is understood that the several Underwriters propose to offer the
Offered Securities for sale to the public as set forth in the Prospectus and
that you will not offer, sell or otherwise distribute the Offered Securities
(except for the sale thereof in exempt transactions) in any state in which the
Offered Securities are not exempt from registration under "blue sky" or state
securities laws (except where the Offered Securities will have been qualified
for offering and sale at your direction under such "blue sky" or state
securities laws).
4.2 It is understood that each Underwriter may prepare and provide to
prospective investors certain Computational Materials and ABS Term Sheets in
connection with the offering of the Offered Securities, subject to the following
conditions:
(a) All Computational Materials and ABS Term Sheets provided by an
Underwriter to prospective investors that are
6
7
required to be filed pursuant to the SEC No-Action Letters shall bear a legend
on each page including the following statement:
"THE INFORMATION CONTAINED HEREIN HAS BEEN PROVIDED BY [UNDERWRITER].
NEITHER THE ISSUER OF THE SECURITIES NOR ANY OF ITS AFFILIATES MAKES
ANY REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF THE
INFORMATION HEREIN. THE INFORMATION HEREIN IS PRELIMINARY, AND WILL BE
SUPERSEDED BY THE APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER
INFORMATION SUBSEQUENTLY FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION."
In the case of Collateral Term Sheets (as defined in the SEC No- Action
Letters), such legend shall also include the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE DESCRIPTION
OF THE MORTGAGE POOL CONTAINED IN THE PROSPECTUS SUPPLEMENT RELATING TO
THE SECURITIES AND SUPERSEDES ALL INFORMATION CONTAINED IN ANY
COLLATERAL TERM SHEETS RELATING TO THE MORTGAGE POOL PREVIOUSLY
PROVIDED BY [UNDERWRITER]."
Notwithstanding the foregoing, this subsection (a) will be satisfied if all
Computational Materials and ABS Term Sheets referred to therein bear a legend in
a form previously approved in writing by the Company.
(b) Any [Computational Material and] ABS Term Sheets are subject to the
review by and approval of the Company prior to their distribution to any
prospective investors and a copy of such [Computational Material and] ABS Term
Sheets as are delivered to prospective investors shall, in addition to the
foregoing delivery requirements, be delivered to the Company simultaneously with
delivery to prospective investors.
(c) Each Underwriter shall provide to the Company, for filing on Form
8-K as provided in Section 5(h), copies (in such format as required by the
Company) of all Computational Materials and ABS Term Sheets prepared by it that
are required to be filed with the Commission pursuant to the SEC No-Action
Letters. An Underwriter may provide copies of the foregoing in a consolidated or
aggregate form that includes all information required to be filed. All
Computational Materials and ABS Term Sheets described in this Section 4.2(c)
must be provided to the Company not later than 10:00 a.m. New York time one
business day before filing thereof is required pursuant to the terms of this
Agreement. Each Underwriter severally agrees that it will not provide to any
investor or prospective investor in the Offered Securities any Computational
Materials or ABS Term Sheets on or after the day on which Computational
Materials and ABS Term Sheets are required to be provided to the Company
pursuant to this Section 4.2(c) (other than copies of Computational Materials or
ABS Term Sheets
7
8
previously submitted to the Company in accordance with this Section 4.2(c) for
filing pursuant to Section 5(h)), unless such Computational Materials or ABS
Term Sheets are preceded or accompanied by the delivery of a Prospectus to such
investor or prospective investor.
(d) All information included in the Computational Materials and ABS
Term Sheets shall be generated based on substantially the same methodology and
assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; provided, however, that the Computational
Materials and ABS Term Sheets may include information based on alternative
methodologies or assumptions if specified therein. If any Computational
Materials or ABS Term Sheets that are required to be filed were based on
assumptions with respect to the Assets that are incorrect, that differ from the
final Pool Information in any material respect or on Security structuring terms
that were revised in any material respect prior to the printing of the
Prospectus, the Underwriter responsible therefor shall prepare revised
Computational Materials or ABS Term Sheets, as the case may be, based on the
final Pool Information and structuring assumptions, circulate such revised
Computational Materials and ABS Term Sheets to all recipients of the preliminary
versions thereof that indicated orally to such Underwriter they would purchase
all or any portion of the Securities, and include such revised Computational
Materials and ABS Term Sheets (marked, "as revised") in the materials delivered
to the Company pursuant to Section 4.2(c).
(e) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that (i) in the reasonable determination of the
Company [and the respective Underwriter] are not required to be filed pursuant
to the SEC No- Action Letters or (ii) have been determined to contain any
material error or omission, provided that, at the request of the respective
Underwriter, the Company will file Computational Materials or ABS Term Sheets
that contain a material error or omission if clearly marked "superseded by
materials dated ________" and accompanied by corrected Computational Materials
or ABS Term Sheets that are marked "material previously dated _________, as
corrected". In the event that at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act, any Computational
Materials or ABS Term Sheets are determined, in the reasonable judgment of the
Company or the respective Underwriter, to contain a material error or omission,
such Underwriter shall prepare a corrected version of such Computational
Materials or ABS Term Sheets, shall circulate such corrected version of such
Computational Materials and ABS Term Sheets to all recipients of the prior
versions thereof that either indicated orally to such Underwriter they would
purchase all or any portion of the Offered Securities, or actually purchased all
or any portion thereof, and shall deliver copies of such corrected Computational
Materials and ABS Term Sheets
8
9
(marked, "as corrected") to the Company for filing with the Commission in a
subsequent Form 8-K submission (subject to the Company's obtaining an
accountant's comfort letter in respect of such corrected Computational Materials
and ABS Term Sheets, which shall be at the expense of such Underwriter) provided
that if any such letter is required to be revised solely because of a change in
the Pool Information, any additional expenses for letter resulting from the
change in Pool Information shall be paid by the Company.
(f) If the Underwriter does not provide any Computational Materials and
ABS Term Sheets to the Company pursuant to Section 4.2(c), such Underwriter
shall be deemed to have represented, as of the Closing Date, that it did not
provide any prospective investors with any information in written or electronic
form in connection with the offering of the Offered Securities that is required
to be filed with the Commission in accordance with the SEC No-Action Letters,
and such Underwriter shall provide the Company with a certification to that
effect on the Closing Date.
4.3 Each Underwriter severally represents and warrants and agrees with the
Company that as of the date hereof and as of the Closing Date that: (i) the
Computational Materials and ABS Term Sheets furnished by it to the Company
pursuant to Section 4.2(c) constitute (either in original, aggregate or
consolidated form) all of the materials furnished to prospective investors by
such Underwriter prior to the time of delivery thereof to the Company that are
required to be filed with the Commission with respect to the Offered Securities
in accordance with the SEC No-Action Letters, and such Computational Materials
and ABS Term Sheets comply with the requirements of the SEC No-Action Letters;
(ii) on the date any such Computational Materials and ABS Term Sheets with
respect to such Securities (or any written or electronic materials furnished to
prospective investors on which the Computational Materials and ABS Term Sheets
are based) were last furnished to each prospective investor and on the date of
delivery thereof to the Company pursuant to Section 4.2(c) and on the related
Closing Date, such Computational Materials and ABS Term Sheets (or materials)
were accurate in all material respects when read in conjunction with the
Prospectus (taking into account the assumptions explicitly set forth in the
Computational Materials, except to the extent of any errors therein that are
caused by errors in the Pool Information; (iii) each Underwriter has not and
will not represent to potential investors that any Computational Materials and
ABS Term Sheets were prepared or disseminated on behalf of the Company; and (iv)
all Computational Materials and ABS Term Sheets (or underlying materials
distributed to prospective investors by it on which the Computational Materials
and ABS Term Sheets were based) contained and will contain the legend in the
form set forth in Section 4.2(a) (or in such other form previously approved in
writing by the Company).
9
10
Notwithstanding the foregoing, neither Underwriter makes any
representation or warranty as to whether any Computational Materials or ABS Term
Sheets (or any written or electronic materials furnished to prospective
investors on which the Computational Materials or ABS Term Sheets are based)
included or will include any inaccurate statement resulting directly from any
error contained in the Pool Information.
5. Agreements. The Company agrees with each Underwriter that:
(a) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Securities, the Company will furnish you with a
copy of each such proposed amendment or supplement and will not file any such
proposed amendment or supplement to which any Underwriter reasonably objects.
(b) The Company will cause the Prospectus Supplement to be transmitted
to the Commission for filing pursuant to Rule 424 under the Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule and, if necessary, within 15 days of the Closing Date, will transmit for
filing by means reasonably calculated to result in filing with the Commission a
report on Form 8-K for purposes of filing the Pooling and Servicing Agreement,
and will promptly advise each Underwriter when the Prospectus Supplement has
been so filed.
(c) Prior to the termination of the offering of the Offered Securities,
the Company will promptly advise each Underwriter (i) when any amendment to the
Registration Statement has become effective or any revision of or supplement to
the Prospectus has been so filed (unless such amendment, revision or supplement
does not relate to the Securities), (ii) of any request by the Commission for
any amendment of the Registration Statement or the Prospectus or for any
additional information (unless such request for additional information does not
relate to the Securities), (iii) of any written notification received by the
Company of the suspension of qualification of the Offered Securities, for sale
in any jurisdiction or the initiation of threatening of any proceeding for such
purpose and (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or to the
knowledge of the Company, the threatening of any proceeding for that purpose.
The Company will use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof.
Except as otherwise provided in Section 5(d), the Company will not file prior to
the termination of such offering any amendment to the Registration Statement or
any revision of or supplement to the Prospectus (other than any such amendment,
revision or supplement which does not relate to the Securities) which shall be
disapproved by the Underwriters after reasonable notice and review of such
filing.
10
11
(d) If at any time when a prospectus relating to the Offered Securities
is required to be delivered under the Act (i) any event occurs as a result of
which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein in the light of the circumstances under which they were
made not misleading, or (ii) it shall be necessary to revise, amend or
supplement the Prospectus to comply with the Act or the rules and regulations of
the Commission thereunder, the Company promptly will notify each Underwriter and
will, upon the request of any Underwriter, or may, after consultation with each
Underwriter, prepare and file with the Commission a revision, amendment or
supplement which will correct such statement or omission or effect such
compliance, and furnish without charge to each Underwriter as many copies as
such Underwriter may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance.
(e) The Company will furnish to each Underwriter and counsel to each
Underwriter, without charge, conformed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus relating
to the Offered Securities is required under the Act, as many copies of the
Prospectus, any documents incorporated by reference therein and any revisions or
amendments thereof or supplements thereto as may be reasonably requested.
(f) The Company will endeavor to arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as you may reasonably
designate and will maintain such qualification in effect so long as required for
the initial distribution of the Securities; 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 that would subject it to general or
unlimited service of process in any jurisdiction where it is not so subject.
(g) Whether or not the transactions contemplated in the Pooling and
Servicing Agreement were consummated or this Agreement is terminated, the
Company shall pay or cause to be paid all expenses incident to the performance
of its obligations under this Agreement, including: (i) the fees, disbursements
and expenses of the Company's counsel in connection with the registration and
delivery of the Offered Securities under the Act and all other fees or expenses
in connection with the preparation and filing of the Registration Statement, any
preliminary prospectus, the Prospectus and amendments and supplements to any of
the foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer
11
12
and delivery of the Offered Securities to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the cost of printing or producing
any "blue sky" memorandum in connection with the offer and sale of the Offered
Securities under state securities laws and all expenses in connection with the
qualification of the Offered Securities for offer and sale under state
securities laws as provided in Section 5(f), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the "blue sky" memorandum, (vi)
all filing fees and disbursements of counsel for the Underwriters incurred in
connection with any review and qualification of the offering by the National
Association of Securities Dealers, Inc., (v) the cost of printing the Offered
Securities, (vi) the costs and charges of any transfer agent, registrar or
depositary, and (vii) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not otherwise
made in this Section.
(h) So long as any Offered Securities are outstanding, upon request of
any Underwriter, the Company will, or will cause the [Master Servicer] to,
furnish to such Underwriter, as soon as available, a copy of (i) the annual
statement of compliance delivered by the [Master Servicer] to the Trustee under
the [Pooling and Servicing Agreement], (ii) the annual independent public
accountants' servicing report furnished to the Trustee pursuant to the [Pooling
and Servicing Agreement], (iii) each report of the Company regarding the Offered
Securities filed with the Commission under the Exchange Act or mailed to the
holders of the Offered Securities and (iv) from time to time, such other
information concerning the Offered Securities which may be furnished by the
Company or the [Master Servicer] without undue expense and without violation of
applicable law.
(i) The Company shall file the Computational Materials and ABS Term
Sheets (if any) provided to it by an Underwriter under Section 4.2(c) with the
Commission pursuant to a Current Report on Form 8-K by 10:00 a.m. on the morning
the Prospectus is delivered to such Underwriter or, the case of any Collateral
Term Sheet required to be filed prior to such date, by 10:00 a.m. on the second
business day following the first day on which such Collateral Term Sheet has
been sent to a prospective investor; provided, however, that prior to such
filing of the Computational Materials and ABS Term Sheets (other than any
Collateral Term Sheets that are not based on the Pool Information) by the
Company, such Underwriter must comply with its obligations pursuant to Section
4.2 and the Company must receive a letter from ______________________, certified
public accountants, satisfactory in form and substance to the Company and its
counsel, to the effect that such accountants have performed certain specified
procedures, all of which have been agreed to by the Company, as a result of
which they determined that all
12
13
information that is included in the Computational Materials and ABS Term Sheets
(if any) provided by the Underwriters to the Company for filing on Form 8-K, as
provided in Section 4.2 and this Section 5(i), is accurate except as to such
matters that are not deemed by the Company to be material. The foregoing letter
shall be at the sole expense of the Company. The Company shall file any
corrected Computational Materials or ABS Term Sheets described in Section 4.2(e)
as soon as practicable following receipt thereof.
6. Conditions to the Obligations of Underwriters. The obligation of
each Underwriter to purchase the Offered Securities to be purchased by it shall
be subject to the accuracy in all material respects of the representations and
warranties on the part of the Company contained herein as of the date hereof and
as of the Closing Date, to the accuracy of the statements of the Company made in
any officer's certificate pursuant to the provisions hereof, to the performance
in all material respects by the Company of its obligations hereunder and to the
following additional conditions:
(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, 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 under
the Act.
(b) The Company shall have furnished to the Underwriters a certificate,
dated the Closing Date, of the Company, signed by a vice president of the
Company, to the effect that the signer of such certificate has carefully
examined the Registration Statement, the Prospectus, this Agreement [the Pooling
and Servicing Agreement, the Indenture or the Trust Agreement, as applicable]
and that:
(i) The representations and warranties of the Company in this
Agreement [the Pooling and Servicing Agreement, the Indenture and the
Trust Agreement] are true and correct in all material respect 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 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 has been issued, and no proceedings for that
purpose have been instituted and are pending or, to his knowledge,
have been threatened as of the Closing Date;
(iii) Nothing has come to the attention of such person that would
lead him to believe that the Prospectus (other than
13
14
any Computational Materials or ABS Term Sheets incorporated therein by
reference) contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and
(iv) Since ___________, there has been no material adverse change
(not in the ordinary course of business) in connection with the
Company.
(c) The Company shall have furnished or caused to have been
furnished to the Underwriters a certificate, dated the Closing Date, of the
Seller, signed by a vice president or an assistant vice president of the Seller,
to the effect that the signer of such certificate has carefully examined the
Prospectus and nothing has come to the attention of such person that would lead
him to believe that the Prospectus contains any untrue statement of a material
fact with respect to the Seller or the Assets or omits to state any material
fact with respect to the Seller or the Assets necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) The Company shall have furnished to you and opinion, dated
the Closing Date, of __________________. counsel to the Company, substantially
to the effect that:
[(i) The Registration Statement and any amendments thereto
have become effective under the Act; to the best knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued and not withdrawn, no proceedings for that
purpose have been instituted or threatened and not terminated; and the
Registration Statement, the Prospectus and each amendment or supplement
thereto, as of their respective effective or issue dates (other than
the financial and statistical information contained therein as to which
such counsel need express no opinion), complied as to form in all
material respects with the applicable requirements of the Act and the
rules and regulations of the Commission thereunder;
(ii) To the best knowledge of such counsel, there are not material
contracts, indentures or other documents of a character required to be
described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto;
(iii) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of
14
15
the State of Delaware [and is duly qualified to do business in, and is
in good standing as a foreign corporation under the laws of, the State
of New York].
(iv) This Agreement has been duly authorized, executed
and delivered by the Company.
(v) Each of the [Pooling and Servicing Agreement][Indenture,
Trust Agreement] and the Asset Purchase Agreement has been duly
authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery by other parties thereto,
constitutes a valid, legal and binding agreement of the Company, is
enforceable against the Company in accordance with its terms, subject
as to enforceability to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally,
to general principals of equity regardless of whether enforcement is
sought in a proceeding in equity or at law and to the effect of the
exercise by the Trustee of certain remedial provisions, including
waivers, against the Assets;
(vi) The Offered Securities have been duly authorized and, assuming
authentication and delivery in the manner contemplated in the [Pooling
and Servicing Agreement][Indenture][Trust Agreement], and upon delivery
by the Company of the Offered Securities to be purchased by the
Underwriters and payment by the Underwriters of the purchase price
therefor in the manner contemplated by this Agreement, the Offered
Securities will be (A) validly issued and outstanding and entitled to
the benefits of the [Pooling and Servicing Agreement][Indenture][Trust
Agreement] and (B) free and clear of any lien, pledge, encumbrance or
other security interest other than one permitted by the [Pooling and
Servicing Agreement][Indenture][Trust Agreement] or created or granted
by any Underwriter;
(vii) To the best knowledge of such counsel, no consent, approval,
authorization or order of any New York, Delaware or federal
governmental agency or body or any New York, Delaware or federal court
is required for the consummation by the Company of the transactions
contemplated by the terms of this Agreement, the [Pooling and
Servicing Agreement][Indenture][Trust Agreement] or the Asset Purchase
Agreement, except such as may be required under the "blue sky" or
state securities laws of any jurisdiction in connection with the
offering, sale or acquisition of the Offered Securities, any
recordations of the assignment of the Assets to the Trustee (to the
extent such recordations are required pursuant to the [Pooling and
Servicing Agreement] [Trust Agreement]) that have not yet been
completed and such other approvals as have been obtained;
15
16
(viii) The sale of the Offered Securities to be purchased by the
Underwriters pursuant to this Agreement and the consummation of any of
the transactions contemplated by the terms of the [Pooling and
Servicing Agreement][Indenture][Trust Agreement], Asset Purchase
Agreement or this Agreement do not conflict with or result in
a breach or violation of any material term or provision of, or
constitute a default under, the certificate of incorporation of the
Company, or to the best knowledge of such counsel, any indenture or
other agreement or instrument to which the Company is a party or by
which it is bound, or any New York, Delaware or federal statute or
regulation applicable to the Company or an order of any New York,
Delaware or federal court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company;
(ix) The Offered Securities, the Asset Purchase Agreement and the
[Pooling and Servicing Agreement][Indenture][Trust Agreement] conform
to the descriptions thereof contained in the Prospectus;
(x) The statements in the Prospectus Supplement, as the case
may be, under the headings "Federal Income Tax Consequences" and "ERISA
Considerations," to the extent that they constitute matters of New York
or federal law or legal conclusions with respect thereto, have been
reviewed by such counsel and are correct in all material respects;
(xi) [The Securities indicated under the heading "Summary of
Terms--Legal Investment" in the Prospectus Supplement to be "mortgage
related securities" will be mortgage related securities, as defined in
Section 3(a)(41) of the Exchange Act, so long as such Securities are
rated in one of the two highest rating categories by at least one
nationally recognized statistical rating organization;] [and]
(xii) The [Pooling and Servicing Agreement][Indenture]
[Trust Agreement] is not required to be qualified under the Trust
Indenture Act of 1939, as amended, and the Trust Fund created by the
[Pooling and Servicing Agreement][Trust Agreement] is not required to
be registered under the Investment Company Act of 1940, as amended[.]
[; and]
[(xiii) The Trust Fund as described in the Prospectus Supplement and
the Pooling and Servicing Agreement will qualify as a "real estate
mortgage investment conduit" ("REMIC") within the meaning of Section
860D of the Internal Revenue Code of 1986, as amended (the "Code"),
assuming: (i) an election is made to treat the Trust Fund as a REMIC,
(ii) compliance with the Pooling and Servicing Agreement and (iii)
compliance with changes in the law, including any amendments to the
Code or applicable Treasury regulations thereunder.]
16
17
Such counsel shall also state that nothing has come to its attention
that would lead such counsel to believe that the Registration Statement, at the
time it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as of the
date of the Prospectus Supplement, and on the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; it being
understood that such counsel need express no view as to (i) financial and
statistical information contained therein or (ii) any description in the
Prospectus of any third party providing credit enhancement to the Securities.
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 officers of, the parties to this Agreement and the [Pooling and
Servicing Agreement][Indenture][Trust Agreement]. Such opinion may assume the
due authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the Company or its
affiliates. Such opinion may be qualified as an opinion only on the corporate
laws of the State of Delaware, the laws of the State of New York and the federal
law of the United States. To the extent that such counsel 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
counsel that is delivered to the Underwriters.
(e) Each party providing credit enhancement to the Securities shall
have furnished to the Underwriters an opinion, dated the Closing Date, of its
counsel, with respect to the Registration Statement and the Prospectus, and such
other related matters, in the form previously agreed to by such provider and the
Underwriters.
(f) The Underwriters shall have received from their counsel such
opinion or opinions, dated the Closing Date, with respect to the issuance and
sale of the Offered Securities, the Registration Statement and the Prospectus,
and such other related matters as you may reasonably require.
(g) You shall have received from ___________________, certified public
accountants, (a) a letter dated the date hereof and satisfactory in form and
substance to you and your counsel, to the effect that they have performed
certain specified procedures, all of which have been agreed to by you, as a
result of which they determined that certain information of an accounting,
financial or statistical nature set forth in the
17
18
Prospectus Supplement under the captions "Description of the Assets",
"Description of the Securities" and "Yield and Maturity Considerations" agrees
with the records of the Company and the Seller excluding any questions of
legal interpretation and (b) the letter prepared pursuant to Section 5(i).
(h) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of the Seller which in your reasonable judgment
materially impairs the investment quality of the Offered Securities so as to
make it impractical or inadvisable to proceed with the public offering or the
delivery of the Offered Securities as contemplated by the Prospectus.
(i) The Offered Securities shall be rated not lower than the required
ratings set forth under the heading "Ratings" in the Prospectus Supplement, such
ratings shall not have been rescinded and no public announcement shall have been
made that any such required rating of the Offered Securities has been placed
under review (otherwise than for possible upgrading).
(j) The Underwriters shall have received copies of any opinions of
counsel to the Company supplied to the rating organizations relating to certain
matters with respect to the Securities. Any such opinions shall be dated the
Closing Date and addressed to the Underwriters or accompanied by reliance
letters addressed to the Underwriters.
(k) All Classes of Securities being publicly offered by the
Underwriters shall have been issued and paid for pursuant to the terms of this
Agreement.
(l) The Trustee shall have furnished to the Underwriters an opinion
dated the Closing Date, of counsel to the Trustee (who may be an employee of the
Trustee), substantially to the effect that:
(i) The Trustee has full corporate power and authority to
execute and deliver the [Pooling and Servicing
Agreement][Indenture][Trust Agreement] and to perform its obligations
thereunder and to execute, countersign and deliver the Securities.
(ii) The [Pooling and Servicing Agreement][Indenture][Trust
Agreement] has been duly authorized, executed and delivered by the
Trustee.
(iii) The [Pooling and Servicing Agreement][Indenture][Trust
Agreement] is a legal, valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium,
receivership, conservatorship
18
19
and similar laws affecting the rights of creditors generally, and
subject, as to enforceability, to general principles of equity,
regardless of whether such enforcement is considered in a proceeding at
law or equity.
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 officers of, the parties to the [Pooling and Servicing
Agreement][Indenture][Trust Agreement]. Such opinion may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Trustee or its affiliates. Such
opinion may be qualified as an opinion only on the laws of the State of New York
and federal law of the United States. To the extent that such counsel 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 counsel that is delivered to the Underwriters.
(m) The Seller shall have sold the Assets to the Company pursuant to
the Asset Purchase Agreement.
(n) The Company shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may reasonably have
requested, and all proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be in all material
respects reasonably satisfactory in form and substance to the Underwriters and
their counsel.
(o) Since ________, there shall have been no material adverse change
(not in the ordinary course of business) in the judgment of each Underwriter in
the condition of the Company that makes it, in the judgment of such Underwriter,
impractible to market the Securities on the terms and in the manner contemplated
by the Prospectus.
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,
this Agreement and all obligations of an Underwriter hereunder may be canceled
at, or at any time prior to, the Closing Date by such Underwriter. Notice of
such cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
7. Indemnification and Contribution. The Company [and
________________] agree, jointly and severally, to indemnify and hold harmless
each of the Underwriters and each person, if any, who controls either such
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Securities Exchange Act of 1934 (the "Exchange Act"), from and against any
and all losses, claims, damages and liabilities, joint or several, to
19
20
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 or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) were caused by 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 other filing incorporated by reference therein,
including Computational Materials and ABS Term Sheets, or in any preliminary
prospectus or the Prospectus or incorporated by reference therein, including
Computational Materials and ABS Term Sheets (if used within the period mentioned
in Section 5(a) and as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein,
in light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities were caused by any such
untrue statement or omission or alleged untrue statement or omission made
therein based upon and in conformity with (i) the information furnished in
writing to the Company by any Underwriter through ________________ specifically
for use in connection with the preparation of the Registration Statement, any
preliminary prospectus or the Prospectus or any revision or amendment thereof or
supplement thereto and (ii) any information in any Computational Materials or
ABS Term Sheets required to be provided by any Underwriter to the Company
pursuant to Section 4.2, except to the extent such material misstatement or
omission is based upon the Pool Information. Such indemnity with respect to any
Corrected Statement (as defined below) in such Prospectus (or supplement
thereto) shall not inure to the benefit of the Underwriters (or any person
controlling either of the Underwriters) from whom the person asserting any loss,
claim, damage or liability purchased the Offered Securities that are the subject
thereof if such person did not receive a copy of the supplement to such
Prospectus at or prior to the confirmation of the sale of such Securities and
the untrue statement or omission of material fact contained in such Prospectus
(or supplement thereto) was corrected (a "Corrected Statement") in such other
supplement and such supplement was furnished by the Company to the Underwriters
prior to the delivery of such confirmation.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company and its directors and officers who sign the
Registration Statement and any person controlling the Company within the meaning
of either Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to the Underwriters, but only
with reference to (i) information relating to the Underwriters furnished in
writing to the Company by any Underwriter specifically for use in connection
with the preparation of the Registration Statement, any preliminary prospectus
or the Prospectus or any revision or amendment thereof
20
21
or supplement thereto and (ii) any Computational Materials, the ABS Term Sheets
or the Collateral Term Sheets, as applicable, except to the extent of any errors
in the Computational Materials or ABS Term Sheets that are caused by errors in
the Pool Information.
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 of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing 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 the indemnifying party may designate in such proceeding and
shall pay the 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 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 or (ii) 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. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by _________________ in the case of parties indemnified
pursuant to the first paragraph of this Section 7 and by the Company in the case
of parties indemnified pursuant to the second paragraph of this Section 7. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, 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 any indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the third sentence of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the
21
22
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 includes an unconditional release of such
indemnified party from all liability on claim that are the subject matter of
such proceeding.
To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party under the first or second paragraph of this
Section 7 or is insufficient in respect of any losses, claims, damages 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 or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand, and by the several
Underwriters on the other, from the offering of the Offered Securities or (ii)
if the allocation provided by clause (i) above 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 of the several Underwriters on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand,
and any Underwriter on the other, in connection with the offering of the Offered
Securities shall be deemed to be in the same respective proportions that the
total net proceeds from the offering of the Offered Securities (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by each of the Underwriters in respect thereof
respectively, bear to the aggregate public offering price of the Offered
Securities. The relative fault of the Company on the one hand, and of any
Underwriter on the other, 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 relates to information
supplied by the Company or by an Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Each Underwriter's obligation to contribute pursuant to
this Section 7 is several in proportion to the respective principal amounts of
Offered Securities it has purchased hereunder, and not joint.
The Company [and _____________] and the several Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take
22
23
account of the considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the immediately preceding
paragraph 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.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which [the total
underwriting discounts and commissions received by such Underwriter in
connection with the Offered Securities underwritten and distributed to the
public by such Underwriter] [the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public]
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission. 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. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company 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 or on behalf of the
Underwriters or any person controlling either of the Underwriters or by on
behalf of the Company, its directors or officers or any person controlling the
Company and (iii) acceptance of any payment for any of the Offered Securities.
8. Termination. This Agreement shall be subject to termination in
__________________'s absolute discretion, by notice given to the Company, if (a)
after the execution and delivery of this Agreement and prior to the Closing Date
(i) trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Underwriters, is
material and adverse and such event singly or together with any other such
event, makes it, in the judgment of
23
24
the Underwriters, impracticable to market the Offered Securities on the terms
and in the manner contemplated in the Prospectus or (b) if the sale of the
Securities provided for herein is not consummated because of any failure or
refusal on the apart 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. If you terminate this
Agreement in accordance with this Section 8 or 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, the Company will reimburse you for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been reasonably incurred by the Underwriters in connection with
the proposed purchase and sale of the Securities.
9. Default by an Underwriter. If any one or more of the Underwriters
shall fail to purchase and pay for any of the Offered Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
aggregate principal amount of all the Offered Security of the various Classes
set forth opposite the name of all the remaining Underwriters) the Offered
Securities that the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate principal
amount of Offered Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate principal amount
of all of the Offered Securities set forth in the Prospectus Supplement, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Offered Securities, and if such
nondefaulting Underwriters do no purchase all the Offered Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the nondefaulting Underwriters shall determine in order that
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and to any nondefaulting Underwriter for damages occasioned by its
defaulting hereunder.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of the failure or refusal on the part of the Company to comply
with the terms or fulfill any of the conditions of this Agreement, or if for any
reason the Company shall reimburse the Underwriters or such Underwriters as have
so
24
25
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Offered Securities.
10. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of the Company, its officers and the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any termination of this Agreement, any investigation made by or on
behalf of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 7 and delivery of and payment for the
Offered Securities.
11. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. 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 shall be in writing
and effective only on receipt and, if sent to an Underwriter, shall be
delivered to the address specified on the signature page hereof; or if sent to
the Company, shall be delivered to ________________________, attention of
General Counsel.
16. Miscellaneous. Time shall be of the essence of this Agreement.
This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof. Neither this Agreement
nor any term hereof may be change, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought.
25
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
by and among the Company and each Underwriter.
Very truly yours,
UNION PLANTERS MORTGAGE FINANCE CORP.
By:___________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted.
Accepted, ___________, 199__
[ ]
[NAMES OF OTHER CO-MANAGERS]
Acting severally on behalf of themselves
and the several Underwriters
named in Schedule I hereto.
By
By:________________________
Name:
Title:
26
27
SCHEDULE I
I-1
28
SCHEDULE II
II-1
