EX 1.1
CHASE MORTGAGE FINANCE CORPORATION
PASS-THROUGH CERTIFICATES
FORM OF UNDERWRITING AGREEMENT
[DATE]
[UNDERWRITER]
Ladies and Gentlemen:
Chase Mortgage Finance Corporation (the "Company"), a Delaware
corporation, has authorized the issuance and sale of Pass-Through Certificates
(such certificates evidencing interests in pools of Mortgage Loans, the
"Certificates") evidencing interests in pools of mortgage loans (the "Mortgage
Loans"). The Certificates may be issued in various series, and, within each
series, in one or more classes, and, within each class, in one or more
sub-classes, in one or more offerings on terms determined at the time of sale
(each such series, a "Series" and each such class, a "Class"). Each Series of
the Certificates will be issued under a separate Pooling and Servicing Agreement
(each, a "Pooling and Servicing Agreement") with respect to such Series among
the Company, as depositor, a servicer to be identified in the prospectus
supplement for each such Series (the "Servicer") and a trustee to be identified
in the prospectus supplement for each such Series (the "Trustee"). The
Certificates of each Series will evidence specified interests in separate pools
of Mortgage Loans (each a "Mortgage Pool") or separate pools of Agency
Securities, and certain other property held in trust with respect to such Series
(each, a "Trust Fund").
The Certificates are more fully described in a Registration Statement
which the Company has furnished to you. Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement. The term "you" as used herein, unless the context otherwise requires,
shall mean you and such persons as are named as co-managers in the applicable
Terms Agreement (defined below).
Whenever the Company determines to make an offering of Certificates
pursuant to this Agreement through you or through an underwriting syndicate
managed by you it will enter into an agreement (the "Terms Agreement") providing
for the sale of such Certificates to, and the purchase and offering thereof by,
you and such other underwriters, if any, selected by you as have authorized you
to enter into such Terms Agreement on their behalf (the "Underwriters," which
term shall include you whether acting alone in the sale of Certificates or as a
member of an underwriting syndicate; as the context requires, [UNDERWRITER]. is
sometimes referred to individually herein as "[UNDERWRITER]"). The Terms
Agreement relating to each offering of Certificates shall specify, among other
things, the stated balance or balances of Certificates to be issued, the price
or prices at which the Certificates are to be purchased by the Underwriters from
the Company and the initial public offering price or prices or the method by
which the price or prices at which such Certificates are to be sold will be
determined. A Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between you and the Company. Each such offering of
Certificates which the Company elects to make pursuant to this Agreement will be
governed by this Agreement, as supplemented by the applicable Terms Agreement,
and this Agreement and such Terms Agreement shall inure to the benefit of and be
binding upon the Underwriters participating in the offering of such
Certificates.
SECTION 1. Representations and Warranties. The Company represents and
warrants to you as of the date hereof, and to the Underwriters named in the
applicable Terms Agreement, all as of the date of such Terms Agreement (in each
case, the "Representation Date"), as follows (any representations and warranties
so made to the Underwriters named in an applicable Terms Agreement respecting
the Certificates being deemed to relate only to the Certificates described
therein):
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
33-92950), relating to the offering of Certificates from time to time
in accordance with Rule 415 under the Securities Act of 1933, as
amended (the "1933 Act"), and has filed, and proposes to file, such
amendments thereto as may have been required to the date hereof and the
same has become effective under the 1933 Act and the rules of the
Commission thereunder (the "Regulations") and no stop order suspending
the effectiveness of such registration statement has been issued and no
proceedings for that purpose have been initiated or, to the Company's
knowledge, threatened, by the Commission. Such registration statement,
including incorporated documents, exhibits and financial statements, as
amended at the time when it became effective under the 1933 Act, and
the prospectus relating to the sale of Certificates by the Company
constituting a part thereof, as from time to time each is amended or
supplemented pursuant to the 1933 Act or otherwise, are referred to
herein as the "Registration Statement" and the "Prospectus,"
respectively; provided, however, that a supplement to the Prospectus
contemplated by Section 3(a) hereof (a "Prospectus Supplement") shall
be deemed to have supplemented the Prospectus only with respect to the
offering or offerings of Certificates to which it relates. Any
reference herein to the Registration Statement, a preliminary
prospectus, the Prospectus or the Prospectus Supplement 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 "1934 Act") on or before the date
on which the Registration Statement, as amended, became effective or
the issue date of such preliminary prospectus, Prospectus, or
Prospectus Supplement, as the case may be; and any reference herein to
the terms "amend," "amendment" or supplement with respect to the
Registration Statement, any preliminary prospectus, the Prospectus or
the Prospectus Supplement shall be deemed to refer to and include the
filing of any document under the 1934 Act after the date on which the
Registration Statement became effective or the issue date of any
preliminary prospectus, the Prospectus or the Prospectus Supplement, as
the case may be, deemed to be incorporated therein by reference. The
Registration Statement and Prospectus, at the time the Registration
Statement became effective did, and as of the applicable Representation
Date will, conform in all material respects to the requirements of the
1933 Act and the Regulations. The Registration Statement, at the time
it became effective did not, and as of the applicable Representation
Date and the applicable Closing Time (as defined in Section 2 hereof)
will not, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus, as amended
or supplemented as of the applicable Representation Date and the
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applicable Closing Time (as defined in Section 2 hereof), 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 representations and warranties in this
subsection shall not apply to statements in, or omissions from, (i) the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Underwriters expressly for use in the Registration Statement or
Prospectus or (ii) the [UNDERWRITER] Information (as defined in Section
10 hereof). The conditions to the use by the Company of a registration
statement on Form S-3 under the 1933 Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus. There are no contracts or
documents of the Company which are required to be filed as exhibits to
the Registration Statement pursuant to the 1933 Act or the Regulations
which have not been so filed.
(b) 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 enter into and
perform its obligations under this Agreement, the applicable Pooling
and Servicing Agreement, and with respect to a Series of Certificates,
the Certificates and the applicable Terms Agreement; and the Company is
duly qualified or registered as a foreign corporation to transact
business and is in good standing in each jurisdiction in which the
ownership or lease of its properties or the conduct of its business
requires such qualification.
(c) The Company is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any material contract, indenture, mortgage, loan agreement, note,
lease or other material instrument to which it is a party or by which
it or its properties may be bound, which default might result in any
material adverse change in the financial condition, earnings, affairs
or business of the Company or which might materially and adversely
affect the properties or assets thereof or the Company's ability to
perform its obligations under this Agreement, the applicable Terms
Agreement or the applicable Pooling and Servicing Agreement.
(d) The execution and delivery by the Company of this
Agreement, the applicable Terms Agreement and the applicable Pooling
and Servicing Agreement and the signing of the Registration Statement
by the Company are within the corporate power of the Company and have
been duly authorized by all necessary corporate action on the part of
the Company; and with respect to a Series of Certificates described in
the applicable Terms Agreement, neither the issuance and sale of the
Certificates to the Underwriters, nor the execution and delivery by the
Company of this Agreement, such Terms Agreement and the related Pooling
and Servicing Agreement, nor the consummation by the Company of the
transactions herein or therein contemplated, nor compliance by the
Company with the provisions hereof or thereof, will 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 other than as contemplated by a Pooling and Servicing
Agreement, pursuant to any material indenture, mortgage, contract or
other material instrument to which the Company is a party or by which
it is bound or to which the property or assets of the Company are
subject, or result in the violation of the provisions of the
certificate of incorporation or by-laws of the Company or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties.
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(e) This Agreement has been, and each applicable Terms
Agreement when executed and delivered as contemplated hereby and
thereby will have been, duly authorized, executed and delivered by the
Company, and each constitutes, or will constitute when so executed and
delivered, a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (assuming due authorization,
execution and delivery by the other parties thereto), subject (a) to
applicable bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors' rights generally, (b) as to
enforceability to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (c) as
to enforceability with respect to rights of indemnity thereunder, to
limitations of public policy under applicable securities laws.
(f) Each applicable Pooling and Servicing Agreement when
executed and delivered as contemplated hereby and thereby will have
been duly authorized, executed and delivered by the Company, and will
constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against the Company in accordance with its terms
(assuming due authorization, execution and delivery by the other
parties thereto), subject (a) to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and (b) as to enforceability to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law); and as of the Closing Date, the representations and
warranties made by the Company in the applicable Pooling and Servicing
Agreement will be true and correct as of the date made.
(g) As of the Closing Time (as defined in Section 2 hereof)
with respect to a Series of Certificates, the Certificates will have
been duly and validly authorized by the Company, and, when executed and
authenticated as specified in the related Pooling and Servicing
Agreement, will be validly issued and outstanding and will be entitled
to the benefits of the related Pooling and Servicing Agreement.
(h) There are no actions, proceedings or investigations now
pending against the Company or, to the knowledge of the Company,
threatened against the Company, before any court, administrative agency
or other tribunal (i) asserting the invalidity of this Agreement, the
applicable Terms Agreement, the applicable Pooling and Servicing
Agreement or with respect to a Series of Certificates, the
Certificates, (ii) seeking to prevent the issuance of such Certificates
or the consummation of any of the transactions contemplated by this
Agreement, the applicable Terms Agreement or such Pooling and Servicing
Agreement, (iii) which would be likely to materially and adversely
affect the performance by the Company of its obligations under, or
which would if adversely determined materially and adversely affect the
validity or enforceability of, this Agreement, the applicable Terms
Agreement, such Pooling and Servicing Agreement or such Certificates or
(iv) seeking to adversely affect the federal income tax attributes of
such Certificates described in the Prospectus and the related
Prospectus Supplement.
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(i) Any taxes, fees and other governmental charges that are
assessed and due in connection with the execution, delivery and
issuance of this Agreement, the applicable Terms Agreement, the
applicable Pooling and Servicing Agreement and with respect to a Series
of Certificates, the Certificates, shall have been paid at or prior to
the Closing Time.
(j) No filing or registration with, notice to or consent,
approval, authorization, order or qualification of or with any court or
governmental agency or body is required for the issuance and sale of
the Certificates or the consummation by the Company of the transactions
contemplated by this Agreement, the applicable Pooling and Servicing
Agreement or the applicable Terms Agreement, except the registration
under the 1933 Act of the Certificates, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Certificates by the Underwriters.
(k) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies deemed by the Company to be
reasonably necessary to conduct the business now operated by it and as
described in the Prospectus and the Company has received no notice of
proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the conduct of the
business, operations, financial condition or income of the Company.
(l) As of the Closing Time, with respect to a Series of
Certificates described in the relevant Terms Agreement evidencing
interests in a Mortgage Pool, the Trustee will have either good and
marketable title, free and clear of all prior liens, charges and
encumbrances, to or a validly perfected first priority security
interest in the Mortgage Notes and the related Mortgages included in
the Trust Fund, with respect to (a) the Mortgage Notes, upon delivery
thereof to the Trustee and (b) the Mortgages, upon delivery to the
Trustee of instruments of assignment in recordable form assigning each
Mortgage to the Trustee and the recording of each such instrument of
assignment in the appropriate recording office in which the Mortgaged
Property is located, or if supported by an opinion of counsel, without
recording.
(m) As of the Closing Time, with respect to a Series of
Certificates as to which there is a Reserve Fund, to the extent that
the Reserve Fund does not constitute part of the Trust Fund for such
Series, the Trustee will have acquired either good and marketable title
to or a duly and validly perfected security interest in the Reserve
Fund with respect to such Series, if any, subject to no prior lien,
mortgage, security interest, pledge, charge or other encumbrance.
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(n) As of the Closing Time, with respect to a Series of
Certificates, the Mortgage Pool will have substantially the
characteristics described in the Prospectus Supplement and in the Form
8-K of the Company prepared with respect to such Certificates, if the
Mortgage Pool is described in such Form 8-K.
(o) Neither the Company nor the Trust Fund created by the
applicable Pooling and Servicing Agreement will be subject to
registration as an "investment company" under the Investment Company
Act of 1940, as amended (the "1940 Act").
(p) The Certificates, the applicable Pooling and Servicing
Agreement, the applicable Terms Agreement and any Primary Insurance
Policies, Mortgage Pool Insurance Policies, Standard Hazard Insurance
Policies, Special Hazard Insurance Policies, Mortgagor Bankruptcy
Insurance and Alternate Credit Enhancement related to the Certificates
described in the relevant Terms Agreement conform in all material
respects to the descriptions thereof contained in the Prospectus.
SECTION 2. Purchase and Sale. The commitment of each Underwriter to
purchase Certificates pursuant to any Terms Agreement shall be several and not
joint and shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
Payment of the purchase price for, and delivery of, any Certificates to
be purchased by the. Underwriters shall be made at the offices of Dechert LLP,
New York, New York, or at such other place as shall be agreed upon by you and
the Company, at such time or date as shall be agreed upon by you and the Company
in the Terms Agreement (each such time and date being referred to as a "Closing
Time"). Unless otherwise specified in the applicable Terms Agreement, payment
shall be made to the Company in immediately available Federal funds wired to
such bank as may be designated by the Company. Such Certificates shall be in
such denominations and registered in such names as you may request in writing at
least two business days prior to the applicable Closing Time. Such Certificates
will be made available for examination and packaging by you no later than 12:00
noon on the first business day prior to the applicable Closing Time.
It is understood that the Underwriters intend to offer the Certificates
for sale to the public as set forth in the Prospectus Supplement.
SECTION 3. Covenants of the Company. The Company covenants with each of
you and each Underwriter participating in an offering of Certificates pursuant
to a Terms Agreement, with respect to such Certificates and such offering, as
follows:
(a) Immediately following the execution of each Terms
Agreement, the Company will prepare a Prospectus Supplement setting
forth the principal amount of Certificates covered thereby, the price
or prices at which the Certificates are to be purchased by the
Underwriters, either the initial public offering price or prices or the
method by which the price or prices by which the Certificates are to be
sold will be determined, the selling concession(s) and reallowance(s),
if any, any delayed delivery arrangements, and such other information
as you and the Company deem appropriate in connection with the offering
of the Certificates. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424
under the 1933 Act and will furnish to the Underwriters as many copies
of the Prospectus and such Prospectus Supplement as you shall
reasonably request.
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(b) If the delivery of a prospectus is required at any time in
connection with the offering or sale of the Certificates described in
the relevant Terms Agreement and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such period of time to
amend or supplement the Prospectus in order to comply with the 1933
Act, the Company agrees to notify you promptly and upon your request so
to amend or supplement the Prospectus and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as you 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.
(c) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
give you reasonable notice of its intention to file any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1933 Act or otherwise, and will
furnish you with copies of any such amendment or supplement or other
documents proposed to be filed a reasonable time in advance of filing.
(d) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
notify you promptly (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any
document other than quarterly and annual reports to be filed pursuant
to the 1934 Act, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus
or any Prospectus Supplement, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (v) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Certificates for sale in any
jurisdiction or the threat of any proceeding for that purpose and (vi)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if any stop order is
issued, to obtain the lifting thereof as soon as possible.
(e) The Company will deliver to you as many conformed copies
of the Registration Statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated by reference in the
Prospectus) as you may reasonably request.
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(f) The Company will endeavor, in cooperation with you, to
qualify the Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United
States as you may designate, and will maintain or cause to be
maintained such qualifications in effect for as long as may be required
for the distribution of the Certificates, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction. The Company will file or cause the filing of such
statements and reports as may be required by the laws of each
jurisdiction in which the Certificates have been qualified as above
provided.
(g) If the Company has elected to cause the applicable
Mortgage Pool to be treated as a real estate mortgage investment
conduit (a "REMIC"), the Company will prepare, or cause to be prepared,
and file, or cause to be filed a timely election to treat the Mortgage
Pool as a REMIC for federal income tax purposes and will file, or cause
to be filed, such tax returns and take such actions, all on a timely
basis, as are required to elect and maintain such status.
(h) With respect to a Series, so long as the Certificates of
such Series are outstanding, the Company will furnish, or cause to be
furnished, to you, copies of all reports and statements available to
Certificateholders pursuant to the Pooling and Servicing Agreement.
SECTION 4. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase Certificates pursuant to any Terms Agreement shall
be subject to the accuracy of the representations and warranties on the part of
the Company herein contained, to the accuracy of the statements of the Company's
officers made pursuant hereto, to the performance by the Company of all of its
obligations hereunder and to the following additional conditions precedent:
(a) At the applicable Closing Time (i) no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
initiated or threatened by the Commission, (ii) the Certificates shall
have received the rating or ratings specified in the applicable Terms
Agreement, and (iii) there shall not have come to your attention any
facts that would cause you to believe that the Prospectus, together
with the applicable Prospectus Supplement at the time it was required
to be delivered to a purchaser of the Certificates, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading. No challenge by
the Commission shall have been made to the accuracy or adequacy of the
Registration Statement and any request of the Commission for inclusion
of additional information in the Registration Statement or the
Prospectus or the Prospectus Supplement shall have been complied with
and the Company shall not have filed with the Commission any amendment
or supplement to the Registration Statement, the Prospectus or the
Prospectus Supplement without the consent of the Underwriters.
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(b) At the applicable Closing Time you shall have received:
(1) The opinion, dated as of the applicable Closing Time,
of Dechert LLP, counsel for the Company, in form and substance
satisfactory to such of you as may be named in the applicable Terms
Agreement, to the effect that;
(i) The Company is validly existing as a corporation
in good standing under the laws of the State of Delaware.
(ii) This Agreement and the applicable Terms
Agreement have been duly authorized, executed and delivered by
the Company, and each is a legal, valid and binding obligation
of the Company enforceable against the Company in accordance
with its terms, except that (A) such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights generally, (B) the remedy of specific
performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought,
and (C) the enforceability as to rights to indemnity
thereunder may be subject to limitations of public policy
under applicable securities laws.
(iii) The applicable Pooling and Servicing Agreement
has been duly authorized, executed and delivered by the
Company, and is a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
except that (A) such enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (B) the remedy of specific performance
and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
(iv) The execution and delivery by the Company of
this Agreement, the applicable Terms Agreement and applicable
Pooling and Servicing Agreement and the signing of the
Registration Statement by the Company are within the corporate
power of the Company and have been duly authorized by all
necessary corporate action on the part of the Company; and
neither the issue and sale of the Certificates nor the
consummation of the transactions contemplated herein or
therein nor the fulfillment of the terms hereof or thereof
will, conflict with or constitute 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
pursuant to, any contract, indenture, mortgage, or other
instrument to which the Company is a party or by which it may
be bound of which such counsel is aware, other than the lien
or liens created by the applicable Pooling and Servicing
Agreement, nor will such action result in any violation of the
provisions of the certificate of incorporation or by-laws of
the Company or, any statute, rule or regulation to which the
Company is subject or by which it is bound or any writ,
injunction or decree of any court, governmental authority or
regulatory body to which it is subject or by which it is bound
of which such counsel is aware.
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(v) The Certificates have been duly authorized,
executed and authenticated as specified in the related Pooling
and Servicing Agreement and when delivered and paid for, will
be validly issued and entitled to the benefits of the related
Pooling and Servicing Agreement.
(vi) To the best of such counsel's knowledge, no
filing or registration with or notice to or consent, approval,
authorization, order or qualification of or with any court or
governmental agency or body is required for the issuance and
sale of the Certificates or the consummation by the Company of
the transactions contemplated by this Agreement, the
applicable Pooling and Servicing Agreement or the applicable
Terms Agreement, except the registration under the 1933 Act of
the Certificates, and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Certificates by the
Underwriters.
(vii) To the best of such counsel's knowledge, there
is no action, suit or proceeding of which such counsel is
aware before or by any court or governmental agency or body,
domestic or foreign, now pending or threatened against the
Company which might result in any material adverse change in
the financial condition, earnings, affairs or business of the
Company, or which might materially and adversely affect the
properties or assets thereof or might materially and adversely
affect the performance by the Company of its obligations
under, or the validity or enforceability of, the Certificates,
this Agreement or the Pooling and Servicing Agreement, or
which is required to be disclosed in the Registration
Statement.
(viii) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(ix) The applicable Pooling and Servicing Agreement
is not required to be qualified under the Trust Indenture Act
of 1939, as amended.
(x) The Registration Statement and the Prospectus
(other than the financial statements and other financial and
statistical information included therein, as to which no
opinion need be rendered) as of their respective effective or
issue dates, complied as to form in all material respects with
the requirements of the 1933 Act and the Regulations
thereunder.
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(xi) The statements in the Prospectus under the
headings "ERISA Considerations" and "Federal Income Tax
Consequences" and the statements in the applicable Prospectus
Supplement under the headings "Federal Income Tax
Considerations" and "ERISA Considerations," to the extent that
they describe matters of United States federal income tax law
or ERISA or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and are accurate in all
material respects with respect to those consequences or
matters discussed therein.
(xii) The statements in the Prospectus and the
applicable Prospectus Supplement under the caption
"Description of the Certificates," insofar as they purport to
summarize certain terms of the Certificates and the applicable
Pooling and Servicing Agreement, constitute a fair summary of
the provisions purported to be summarized.
(xiii) The Trust Fund created by the applicable
Pooling and Servicing Agreement is not, and will not as a
result of the offer and sale of the Certificates as
contemplated in the Prospectus and in this Agreement become,
an "investment company" required to be registered under the
1940 Act.
(xiv) The Classes of Certificates so designated in
the Prospectus Supplement will be "mortgage related
securities," as defined in ss.3(a)(41) of the 1934 Act, so
long as the Certificates are rated in one of the two highest
grades by at least one nationally recognized statistical
rating organization.
(xv) If a REMIC election is to be made with respect
to the Trust Fund, assuming (a) ongoing compliance with all of
the provisions of the Pooling and Servicing Agreement and (b)
the filing of an election, in accordance with the Pooling and
Servicing Agreement, to be treated as a "real estate mortgage
investment conduit" (a "REMIC") pursuant to Section 860D of
the Internal Revenue Code of 1986, as amended (the "Code") for
Federal income tax purposes, the Trust Fund will qualify as a
REMIC as of the Closing Date and will continue to qualify as a
REMIC for so long as it complies with amendments after the
date hereof to any applicable provisions of the Code and
applicable Treasury Regulations.
Such counsel shall deliver to you such additional opinions addressed to
you addressing the transfer by the Company to the Trustee of its right, title
and interest in and to the Mortgage Loans and other property included in the
Trust Fund at the Closing Time as may be required by each Rating Agency rating
the Certificates.
Such counsel shall state that it has participated in conferences with
officers and other representatives of the Company, your counsel, representatives
of the independent accountants for the Company and you at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xi) and (xii) above) and has made no independent check or
11
verification thereof for the purpose of rendering its opinion, on the basis of
the foregoing, nothing has come to their attention that leads such counsel to
believe that either the Registration Statement, at the time it became effective
and at the applicable Closing Time, contained, an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or that the Prospectus
contained or contains as of the date thereof and at the applicable Closing Time
any untrue statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that such counsel need
express no view with respect to the financial statements, schedules and other
financial and statistical data included in or incorporated by reference into the
Registration Statement, the Prospectus or the Prospectus Supplement.
Such counsel may state that their opinions relate only to laws of the
State of New York, the Federal laws of the United States and the General
Corporation Law of the State of Delaware.
In rendering such opinions, such counsel may rely, as to matters of
fact, to the extent deemed proper and stated therein, on certificates of
responsible officers of the Company, the Trustee or public officials.
(2) The favorable opinion of counsel to the Trustee, dated
as of the applicable Closing Time, addressed to you and in form and
scope satisfactory to your counsel, to the effect that:
(i) The Trustee is a national banking association,
duly authorized and validly existing in good standing under
the laws of the United States, and has all requisite power and
authority to enter into the Pooling and Servicing Agreement
and to perform its obligations thereunder.
(ii) To the knowledge of such counsel, there is no
action, suit, proceeding or investigation pending or
threatened against the Trustee that could materially adversely
affect the ability of the Trustee to perform its obligations
under the Pooling and Servicing Agreement.
(iii) The Trustee has duly authorized, executed and
delivered the applicable Pooling and Servicing Agreement and
such Pooling and Servicing Agreement will constitute the
legal, valid and binding obligation of the Trustee.
(iv) The Trustee has full power and authority to
execute and deliver the applicable Pooling and Servicing
Agreement and to perform its obligations thereunder.
(v) No consent, approval or authorization of, or
registration, declaration or filing with, any court or
governmental agency or body of the jurisdiction of its
organization is required for the execution, delivery or
performance by the Trustee of the Pooling and Servicing
Agreement.
12
(vi) The performance by the Trustee of its duties
pursuant to the Pooling and Servicing Agreement does not
conflict with or result in a breach or violation of any term
or provision of, or constitute a default under, any statute or
regulation currently governing the Trustee.
In rendering such opinion, such counsel may rely, as to matters of
fact, to the extent deemed proper and stated therein, on certificates of
responsible officers of the Trustee or public officials.
(3) The favorable opinion of counsel to the Servicer,
dated as of the applicable Closing Time, addressed to you and in form
and scope satisfactory to your counsel, to the effect that:
(i) The Servicer is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation.
(ii) The execution and delivery by the Servicer of
the applicable Pooling and Servicing Agreement is within the
corporate power of the Servicer and has been duly authorized
by all necessary corporate action on the part of the Servicer;
and to the knowledge of such counsel, neither the execution
and delivery of such instrument, nor the consummation of the
transactions provided for therein, nor compliance with the
provisions thereof, will conflict with or constitute a breach
of, or default under, any contract, indenture, mortgage, loan
agreement, note, lease, deed of trust, or other instrument to
which the Servicer is a party or by which it may be bound, nor
will such action result in any violation of the provisions of
the charter or by-laws of the Servicer or to the knowledge of
such counsel, any law, administrative regulation or
administrative or court decree.
(iii) The applicable Pooling and Servicing Agreement
has been duly executed and delivered by the Servicer and
constitutes a valid and binding obligation of the Servicer
enforceable against the Servicer in accordance with its terms,
except that such enforceability thereof may be subject to
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally
and subject, as to enforceability, to general principles of
equity (regardless whether enforcement is sought in a
proceeding in equity or at law).
(iv) To the knowledge of such counsel, the execution,
delivery and performance by the Servicer of the applicable
Pooling and Servicing Agreement do not require the consent or
approval of, the giving of notice to, the registration with,
or the taking of any other action in respect of any federal,
state or other governmental agency or authority which has not
previously been effected.
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(v) To the knowledge of such counsel, there is no
action, suit or proceeding of which such counsel is aware
before or by any court or governmental agency or body,
domestic or foreign, now pending or threatened against the
Servicer which might materially and adversely affect the
performance by the Servicer under, or the validity or
enforceability of, the applicable Pooling and Servicing
Agreement.
(vi) The description of the Servicer in the
applicable Prospectus Supplement is true and correct in all
material respects.
(4) The favorable opinion or opinions, dated as of the
applicable Closing Time, of counsel for the Underwriters, acceptable to
the Underwriters.
(c) At the applicable Closing Time you shall have received a
certificate of the President or a Vice President and the Treasurer or
the Secretary of the Company, dated as of such Closing Time, to the
effect that the representations and warranties of the Company contained
in Section 1 are true and correct with the same force and effect as
though such Closing Time were a Representation Date and that 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 Time.
(d) You shall have received from Price Waterhouse LLP, or
other independent certified public accountants acceptable to you,
letters, dated as of the date of the applicable Terms Agreement and as
of the applicable Closing Time, delivered at such times, in the form
and substance reasonably satisfactory to you.
(e) At the applicable Closing Time, with respect to a Series
of Certificates, each of the representations and warranties of the
Servicer set forth in the related Pooling and Servicing Agreement will
be true and correct and you shall have received a Certificate of an
Executive Vice President, Senior Vice President or Vice President of
the Servicer, dated as of such Closing Time, to such effect.
(f) At the applicable Closing Time, with respect to a Series
of Certificates, the Certificates shall have received the certificate
rating or ratings specified in the related Terms Agreement.
(g) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such other documents and
opinions as they may reasonably require for the purpose of enabling
them to pass upon the issuance and sale of the Certificates as herein
contemplated and related proceedings or in order to evidence the
accuracy and completeness of any of the representations and warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Certificates as herein contemplated shall be reasonably
satisfactory in form and substance to you and counsel for the
Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 5.
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SECTION 5. Payment of Expenses. The Company covenants and agrees with
the Underwriters that the Company will pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement, including
without limitation: (i) expenses related to the preparation and filing of the
Registration Statement and all amendments thereto, (ii) the cost of printing and
delivery to the Underwriters, in such quantities as you may reasonably request,
of copies of this Agreement, each Terms Agreement, any agreements among
Underwriters and selling agreement and the Underwriters' questionnaires and
powers of attorney, (iii) the cost of preparation, issuance and delivery of the
Certificates to the Underwriters, (iv) the fees and disbursements of the
Company's counsel and accountants for the Company, (v) all expenses (other than
legal fees) in connection with the qualification of the Certificates under
securities and Blue Sky laws and the determination of the eligibility of the
Certificates for investment in accordance with the provisions of Section 3(f),
including filing fees, (vi) the cost of printing and delivery to the
Underwriters, in such quantities as you may reasonably request, hereinabove
stated, of copies of the Registration Statement and Prospectus and all
amendments and supplements thereto, and of any Blue Sky survey and legal
investment survey, (vii) the cost of printing and delivery to the Underwriters,
in such quantities as you may reasonably request, of copies of each Pooling and
Servicing Agreement, (viii) the fees charged by not more than two investment
rating agencies for rating the Certificates, (ix) the fees and expenses, if any,
incurred in connection with the listing of the Certificates on any national
securities exchange, (x) any filing fees and expenses incident to any required
review by the National Association of Securities Dealers, Inc., and (xi) the
fees and expenses of the Trustee and its counsel. It is understood, however,
that except as provided in this Section and Section 6 hereof, the Underwriters
will pay all of their own costs and expenses, including the fees of counsel,
transfer taxes on resale of any of the Certificates by them and any advertising
expenses connected with any offers they may make.
If a Terms Agreement is terminated by you in accordance with the
provisions of Section 4 or Section 8(i), the Company shall reimburse you for all
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 6. Indemnification.
(a) The Company will indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of the 1933 Act, against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter or such
controlling person may become subject, under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto), or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading in each case in respect of the relevant
Certificates, and will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred
by such Underwriter or controlling person in connection with
investigating or defending any such action or claim; provided, however,
that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any such document in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter expressly for use therein. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
15
(b) [UNDERWRITER] will indemnify and hold harmless the
Company, each of its officers who signed the Registration Statement,
its respective directors, and any person controlling the Company within
the meaning of the 1933 Act against any losses, claims, damages or
liabilities to which the Company or any such officer, director or
controlling person may become subject, under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto), or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of [UNDERWRITER] expressly for use therein and will reimburse
the Company or any such director, officer or controlling person for any
legal or other expenses reasonably incurred by the Company, any such
officer, director or controlling person in connection with
investigating or defending any such action or claim. This indemnity
agreement is in addition to any liability which [UNDERWRITER] may
otherwise have. The Company acknowledges that, unless otherwise set
forth in the applicable Terms Agreement, the statements set forth in
the last paragraph of the cover page, the first and second sentences of
the third paragraph under the caption "Underwriting" and in the third
to last paragraph of the cover page relating to [UNDERWRITER]'s
intention to create a secondary market, each as included in the
applicable Prospectus Supplement relating to a Series of Certificates,
together with the [UNDERWRITER] Information (as defined in Section 10
hereof) relating to a Series of Certificates constitute the only
information furnished in writing by or on behalf of [UNDERWRITER]
expressly for use in the Registration Statement relating to such Series
of Certificates as originally filed or in any amendment thereof, any
related preliminary prospectus or the Prospectus or in any amendment
thereof or supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an
indemnifying party under this Section, notify such indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section. In
case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying
party); and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
this Section for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any
such case and the fees and expenses of such counsel shall be at the
16
expense of the indemnifying party if (i) the employment of such counsel
shall have been authorized in writing by the indemnifying party in
connection with the defense of such action, (ii) the indemnifying party
shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the
action, or (iii) the indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them and/or
other indemnified parties which are different from or additional to
those available to the indemnifying party (in which case the
indemnifying party shall not have the right to direct the defense of
such action on behalf of the indemnified party). Anything in this
subsection to the contrary notwithstanding, an indemnifying party shall
not be liable for any settlement of any claim or action effected
without its written consent; provided, however, that such consent was
not unreasonably withheld.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from
the offering of the Certificates to which such loss, claim, damage or
liability (or actions in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions (or in the case of a public
offering in negotiated transactions, the difference between the
proceeds to the Company and the aggregate price received from the
public) received by such Underwriters. The relative fault of the
Company on the one hand and the Underwriters 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 on the one hand or such Underwriters on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Notwithstanding anything to the contrary in this Section 6(d), if the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to in this Section 6(d) arise out of an untrue statement or
alleged untrue statement of a material fact contained in any
[UNDERWRITER] 8-K (as such term is defined in Section 10 hereof) then
each indemnifying party shall contribute to the amount paid or payable
17
by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the Company on the one
hand and the Underwriters on the other (determined in accordance with
the preceding sentence) in connection with the statements or omissions
in such [UNDERWRITER] 8-K which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other equitable considerations. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to
this subsection (d) 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 account of the equitable
considerations referred to in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigation or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Certificates underwritten by it and
distributed to the public were sold to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay
by reason of 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 0000 Xxx) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters to contribute
pursuant to this subsection (d) are several in proportion to their
respective underwriting obligations with respect to such Certificates
and not joint.
SECTION 7. Representations, Warranties, and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or the applicable Terms Agreement or any
investigation made by or on behalf of the Underwriters or any controlling person
thereof, or by or on behalf of the Company, its officers or directors and shall
survive delivery of any Certificates to the Underwriters.
SECTION 8. Termination of Agreement. This Agreement may be terminated
for any reason at any time by either the Company or you upon the giving of
thirty days' notice of such termination to the other party hereto; provided,
however, that if a Terms Agreement has been entered into with respect to a
particular transaction, this Agreement and the Terms Agreement may not be
terminated in the manner set forth in this sentence with respect to such
particular transaction. You, as Representative of the Underwriters named in any
Terms Agreement may also terminate such Terms Agreement, immediately upon notice
to the Company, at any time at or prior to the applicable Closing Time (i) if
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement or
Prospectus, any change, or any development involving a prospective change, in or
affecting the condition, financial or otherwise, earnings, affairs or business
of the Company, whether or not arising in the ordinary course of business, which
in your judgment would materially impair the market for, or the investment
quality of, the Certificates, or (ii) if there has occurred any material
outbreak or escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
18
your reasonable judgment, impracticable to market the Certificates or enforce
contracts for the sale of the Certificates, or (iii) if trading in securities
generally on either the New York Stock Exchange or the American Stock Exchange
has been suspended or any setting of minimum prices shall have been established,
or (iv) if a general moratorium of commercial banking activities has been
declared by either Federal or New York State authorities. In the event of any
such termination, (A) the covenants set forth in Section 3 with respect to any
offering of Certificates shall remain in effect so long as the Underwriters own
any such Certificates purchased from the Company pursuant to the applicable
Terms Agreement and (B) the covenant set forth in Section 3(c), the provisions
of Section 5, the indemnity agreement and contribution provisions set forth in
Section 6, and the provisions of Sections 7 and 12 shall remain in effect.
SECTION 9. Default by One or More of the Underwriters.
(a) If one or more of the Underwriters participating in an
offering of Certificates shall fail at the applicable Closing Time to
purchase the Certificates which it or they are obligated to purchase
hereunder and under the applicable Terms Agreement (the "Defaulted
Certificates"), then such of you as are named therein may in your
discretion arrange for you or another party or other parties to
purchase the Defaulted Certificates upon the terms contained herein. If
within thirty-six hours after such default by any Underwriter you do
not arrange for the purchase of such Defaulted Certificates, then the
Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to
you to purchase such Defaulted Certificates on the terms contained
herein. In the event that, within the respective prescribed periods,
you notify the Company that you have so arranged for the purchase of
such Defaulted Certificates, or the Company notifies you that it has so
arranged for the purchase of such Defaulted Certificates, you or the
Company shall have the right to postpone the Closing Time for a period
of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been party to this Agreement with respect to the
Certificate.
(b) If, after giving effect to any arrangements for the
purchase of Defaulted Certificates of a defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Defaulted Certificates
which remains unpurchased does not exceed 10% of the aggregate
principal amount of the Certificates to be purchased pursuant to the
applicable Terms Agreement, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal
amount of Certificates which such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of
Certificates which such Underwriter agreed to purchase pursuant to the
applicable Terms Agreement) of the Defaulted Certificates of the
defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
19
(c) If, after giving effect to any arrangements for the
purchase of the Defaulted Certificates of the defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Defaulted Certificates
which remains unpurchased exceeds 10% of the aggregate principal amount
of the Certificates to be purchased pursuant to the applicable Terms
Agreement, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Defaulted Certificates of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as provided in
Section 5 hereof and the indemnity agreement and contribution
provisions in Section 6 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
SECTION 10. Computational Materials and ABS Term Sheets.
(a) The parties acknowledge that, subsequent to the date on
which the Registration Statement became effective and up to and
including the date on which the Prospectus Supplement and Prospectus
with respect to a Series of Certificates is first made available to the
Underwriters, the Underwriters may furnish to various potential
investors in such Series of Certificates, in writing: (i)
"Computational Materials," as defined in a no-action letter (the
"Xxxxxx No-Action Letter") issued by the staff of the Commission on May
20, 1994 to Xxxxxx, Peabody Acceptance Corporation I, et al., as
modified by a no-action letter (the "First PSA No-Action Letter")
issued by the staff of the Commission on May 27, 1994 to the Public
Securities Association (the "PSA") and as further modified by a
no-action letter (the "Second PSA No-Action Letter," and together with
the Xxxxxx No-Action Letter and the First PSA No-Action Letter, the
"No-Action Letters") issued by the staff of the Commission on February
17, 1995 to the PSA; (ii) "Structural Term Sheets" as defined in the
Second PSA No-Action Letter; and/or (iii) "Collateral Term Sheets" as
defined in the Second PSA No-Action Letter.
(b) In connection with each Series of Certificates,
[UNDERWRITER] shall furnish to the Company, at least one (1) business
day prior to the time of filing of the Prospectus pursuant to Rule 424
under the 1933 Act, all Computational Materials used by [UNDERWRITER]
and required to be filed with the Commission in order for [UNDERWRITER]
to avail itself of the relief granted in the No-Action Letters (such
Computational Materials, the "[UNDERWRITER] Furnished Computational
Materials").
(c) In connection with each Series of Certificates,
[UNDERWRITER] shall furnish to the Company, at least one (1) business
day prior to the time of filing of the Prospectus pursuant to Rule 424
under the Act, all Structural Term Sheets used by [UNDERWRITER] and
required to be filed with the Commission in order for [UNDERWRITER] to
avail itself of the relief granted in the No-Action Letters (such
Structural Term Sheets, the "[UNDERWRITER] Furnished Structural Term
Sheets").
20
(d) In connection with each Series of Certificates,
[UNDERWRITER] shall furnish to the Company, within one (1) business day
after the first use thereof, all Collateral Term Sheets used by
[UNDERWRITER] and required to be filed with the Commission in order for
[UNDERWRITER] to avail itself of the relief granted in the No-Action
Letters (such Collateral Term Sheets, the "[UNDERWRITER] Furnished
Collateral Term Sheets") and shall advise the Company of the date on
which each such Collateral Term Sheet was first used.
(e) [UNDERWRITER] covenants to prepare for signature by the
Company and filing and (following signature by the Company) cause to be
delivered for filing to the Commission one or more current reports on
Form 8-K (collectively, together with any amendments and supplements
thereto, the "[UNDERWRITER] 8-K," and each a "[UNDERWRITER] 8-K") such
that [UNDERWRITER] may avail itself of the relief granted in the
No-Action Letters. In particular, [UNDERWRITER] covenants to cause to
be filed with the Commission (i) all [UNDERWRITER] Furnished
Computational Materials and all [UNDERWRITER] Furnished Structural Term
Sheets on a [UNDERWRITER] 8-K concurrently with the filing of the
Prospectus Supplement and Prospectus with respect to the related Series
of Certificates pursuant to Rule 424 under the 1933 Act; and (ii) all
[UNDERWRITER] Furnished Collateral Term Sheets on a [UNDERWRITER] 8-K
not later than two (2) business days after the first use thereof. Any
[UNDERWRITER] 8-K containing Furnished Structural Term Sheets and/or
Furnished Collateral Term Sheets shall be filed electronically via
XXXXX. Any [UNDERWRITER] 8-K containing Furnished Computational
Materials shall be filed in paper under cover of Form SE in accordance
with Rule 311(i) of Resolution S-T.
(f) [UNDERWRITER] shall cooperate with the Company and with
Price Waterhouse LLP in obtaining a letter, in form and substance
satisfactory to the Company and [UNDERWRITER], of Price Waterhouse LLP
regarding the information in any [UNDERWRITER] 8-K consisting of
[UNDERWRITER] Furnished Computational Materials and/or [UNDERWRITER]
Furnished Structural Term Sheets. Any such letter shall be obtained
prior to the filing of any such [UNDERWRITER] 8-K with the Commission
at [UNDERWRITER]'s sole expense.
(g) [UNDERWRITER] represents and warrants to, and covenants
with, the Company that as presented in the [UNDERWRITER] 8-K, the
[UNDERWRITER] Information (defined below) is not misleading and not
inaccurate in any material respect and that any Pool Information
(defined below) contained in any [UNDERWRITER] 8-K which is not
otherwise inaccurate in any material respect is not presented in the
[UNDERWRITER] 8-K in a way that is either misleading or inaccurate in
any material respect [UNDERWRITER] further covenants with the Company
that if any Computational Materials or ABS Term Sheets (as such term is
defined in the Second PSA No-Action Letter) contained in any
[UNDERWRITER] 8-K are found to include any information that is
misleading or inaccurate in any material respect, [UNDERWRITER]
promptly shall inform the Company of such finding, provide the Company
with revised and/or corrected Computational Materials or ABS Term
Sheets, as the case may be, and promptly prepare for signature by the
Company and filing and (following signature by the Company) cause to be
delivered for filing to the Commission in accordance herewith, revised
and/or corrected Computational Materials or ABS Term Sheets, as the
case may be.
21
(h) [UNDERWRITER] covenants that all Computational Materials
and ABS Term Sheets used by it shall contain a legend (i) approved by
the Company or (ii) substantially in the form of the following legend:
THIS INFORMATION IS FURNISHED TO YOU SOLELY BY [UNDERWRITER]
AND NOT BY CHASE MORTGAGE FINANCE CORPORATION ("CMFC") OR ANY
OF ITS AFFILIATES. [UNDERWRITER] IS NOT ACTING AS CMFC'S
AGENT."
(i) [UNDERWRITER] covenants that all Collateral Term Sheets
used by it shall contain the following additional legend (or similar
legend approved by the Company):
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE MORTGAGE LOANS CONTAINED IN THE PROSPECTUS
SUPPLEMENT."
(j) [UNDERWRITER] covenants that all Collateral Term Sheets
(other than the initial Collateral Term Sheet) shall contain the
following additional legend (or similar legend approved by the
Company):
"THE INFORMATION CONTAINED HEREIN SUPERSEDES THE INFORMATION
IN ALL PRIOR COLLATERAL TERM SHEETS, IF ANY."
(k) [UNDERWRITER] shall deliver to the Company a copy of each
[UNDERWRITER] 8-K (including written evidence of filing) promptly upon
filing the same with the Commission (but in any event not later than
the earlier to occur of (i) the second business day after filing and
(ii) the Closing Time).
(l) For purposes of this Agreement, the term "[UNDERWRITER]
Information" means such portion, if any, of the information contained
in the [UNDERWRITER] 8-K that is not Pool Information; provided,
however, that if any information that would otherwise constitute
[UNDERWRITER] Information is either inaccurate or misleading in any
material respect because such information was based upon Pool
Information that was inaccurate or misleading in any material respect
(and such Pool Information was not superseded or corrected by delivery
to [UNDERWRITER] of corrected Pool Information within a reasonable
period prior to the confirmation of the sale of the applicable
Certificates, or for which the Company did not provide written notice
of such error to [UNDERWRITER] within a reasonable period prior to the
confirmation of the sale of the applicable Certificates), such
information shall not be [UNDERWRITER] Information. "Pool Information"
means the information furnished to the Underwriters by the Company
regarding the Mortgage Loans; provided, however, that if any
information that would otherwise constitute Pool Information is
presented in the [UNDERWRITER] 8-K in a way that is either inaccurate
or misleading in any material respect, such information shall not be
Pool Information.
22
(m) Promptly upon becoming aware that any Pool Information is
inaccurate or misleading in any material respect, the Company will use
its reasonable best efforts to deliver corrected Pool Information in
writing to [UNDERWRITER].
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed,
delivered, telexed, or telegraphed and confirmed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be directed to you
at the respective addresses set forth on the first page hereof, to the attention
of the General Counsel. Notices to the Company shall be directed to [_________].
SECTION 12. Parties. This Agreement shall be binding upon and inure
solely to the benefit of you and the Company and to the extent provided in
Section 6 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter and their respective heirs, executors,
administrators, successors and assigns and any Terms Agreement shall be binding
upon and inure solely to the benefit of the Company and any Underwriter who
becomes a party to a Terms Agreement and to the extent provided in Section 6
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter and their respective heirs, executors,
administrators, successors and assigns. Nothing expressed or mentioned in this
Agreement or a Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto or thereto and their
respective successors and the controlling person and officers and directors
referred to in Section 6 hereof and their heirs any legal or equitable right,
remedy or claim under or with respect to this Agreement or a Terms Agreement or
any provision herein or therein contained.
SECTION 13. Governing Law and Time. This Agreement and each Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York. Specified times of day refer to New York City time.
SECTION 14. Counterparts. This Agreement and any Terms Agreement may be
executed in any number of counterparts (which execution may take the form of an
exchange of any standard form of written telecommunication between you and the
Company), each of which shall constitute an original of any party whose
signature appears on it, and all of which shall together constitute a single
instrument.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and the Company in accordance with its terms.
Very truly yours,
CHASE MORTGAGE FINANCE
CORPORATION
By:
------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
[UNDERWRITER]
By:
-----------------------------------------------------------
Name:
Title:
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and the Company in accordance with its terms.
Very truly yours,
CHASE MORTGAGE FINANCE
CORPORATION
By:
------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
[UNDERWRITER]
By:
-----------------------------------
Name:
Title:
EXHIBIT A
PASS-THROUGH CERTIFICATES
CHASE MORTGAGE FINANCE CORPORATION, SELLER
TERMS AGREEMENT
Dated:_________, 19__
To: Chase Mortgage Finance Corporation
Re: Underwriting Agreement, dated as of [DATE] (the "Underwriting Agreement")
Ladies and Gentlemen:
The undersigned (being herein called the "Underwriters"), understand
that Chase Mortgage Finance Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell $_________ original principal amount of Pass-Through
Certificates described below (the "Certificates"). The Certificates will be
issued under a Pooling and Servicing Agreement dated as of _______________ among
the Company, as seller,_______________, as servicer and _____________ as
trustee. The terms of the Certificates are summarized below and are more fully
described in the Company's Prospectus supplement prepared with respect to the
Certificates.
All the provisions (including defined terms) contained in the
Underwriting Agreement are incorporated by reference herein in their entirety
and shall be deemed to be part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. The Closing Time referred to
in Section 2 of the Underwriting Agreement shall be_______ a.m., New York City
time, on_____________. Subject to the terms and conditions set forth or
incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase[, severally and not jointly,] the [respective]
original principal amount[s] of Certificates set forth opposite [its] [their]
name[s] in Exhibit I hereto at the purchase price set forth below.
The Underwriters will offer the Certificates for sale upon the terms
and conditions set forth in the Prospectus.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Underwriters will pay for the Certificates at the time and
place and in the manner set forth in the Underwriting Agreement.
A-1
Series Designation: ____________
Terms of the Certificates and Underwriting Compensation:
Original
Principal Remittance Price to
Classes Amount* Rate Public
------- ------ ---- ------
**
* Approximate. Subject to permitted variance in each case of plus or
minus 5%.
** The [Class A] Certificates are being offered by the Underwriter from
time to time in negotiated transactions or otherwise at varying prices
to be determined, in each case, at the time of sale.
Certificate Rating:
_____ by [Rating Agency]
_____ by [Rating Agency]
REMIC Election:
The Company [does not] intend[s] to cause the Mortgage Pool to be
treated as a REMIC.
Credit Enhancement:
Cut-off Date:
The Cut-off Date is___________, 19__.
Remittance Date:
The ____ day of each month (or, if such ____ day is not a business day,
the business day immediately following) commencing__________, 19__.
Purchase Price:
The purchase price payable by the Underwriter for the [Class A]
Certificates is___% of the aggregate principal balance of the [Class A]
Certificates as of the Closing Date plus accrued interest at the per annum rate
of___% from_________, 19__ up to but not including the Closing Date.
A-2
Underwriting Commission:
Notwithstanding anything to the contrary in the Underwriting Agreement,
no additional underwriting commission shall be payable by the Company to the
Underwriter in connection with the purchase of the Certificates.
Information Provided by Underwriter:
Closing Date and Location:
__________, 19__ at the offices of Dechert LLP.
Please confirm your agreement by having an authorized Officer sign a
copy of this Agreement in the space set forth below and returning a signed copy
to us.
[UNDERWRITER]
By:
------------------------------------
Name:
Title:
ACCEPTED:
CHASE MORTGAGE FINANCE CORPORATION
By:
---------------------------------------
Name:
Title:
A-3
EXHIBIT I
Original
Principal
Amount of
Name Certificates
---- ------------
Total
===================
I-1
