Exhibit 1.1
ML ASSET BACKED CORPORATION, DEPOSITOR
Asset Backed Securities,
(Issuable in Series)
FORM OF UNDERWRITING AGREEMENT
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_________________, 199_
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
ML Asset Backed Corporation (the "Company"), a Delaware corporation,
with its principal place of business in New York, New York, is a wholly-owned
subsidiary of Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation, and an
affiliate of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated. The Company
has authorized the issuance and sale of Asset Backed Notes (the "Notes") and
Asset Backed Certificates (the "Certificates" and, together with the Notes,
the "Securities") in the classes, and in the respective original principal
amounts as follows: (____________). (The Notes will be issued pursuant to an
Indenture, dated as of _____________, 199_ (the "Indenture") between the
Trust and _____________, as Indenture Trustee.) (The Certificates will be
issued pursuant to a Trust Agreement dated as of _______________, 199_ (the
"Trust Agreement") between the Company, as Depositor and __________________,
as Owner Trustee.) The Securities will represent undivided beneficial
ownership interests in a trust (the "Trust") the assets of which shall
consist of (DESCRIBE TRUST ASSETS). The Securities are described in the
Prospectus Supplement (as hereinafter defined). The Securities of each
Series will evidence undivided interests in a trust fund (the "Trust Fund")
consisting primarily of ( ) (the "Assets").
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture or the Trust Agreement.
The Company has determined to make an offering of the Securities and
entered into a Terms Agreement, dated as of __________________, 199_ (the
"Terms Agreement") providing for the sale of the Securities to, and the
purchase and offering thereof by, you (the "Underwriter"). The Terms
Agreement specifies, among other things, the principal amount or amounts of
Securities to be issued, the price or prices at which the Securities are to
be purchased by the Underwriter from the Company and the initial public
offering price or prices or the method by which the price or prices at which
such Securities are to be sold will be determined. The Terms Agreement shall
be substantially in the form of Exhibit A hereto. The offering of the
Securities will be governed by this Agreement, as supplemented by the Terms
Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon the Underwriter.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-____)
relating to its asset backed securities, and the offering thereof 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 through the date hereof and
prior to the effective date thereof pursuant to the 1933 Act and the rules of
the Commission thereunder (the "Regulations"). Such registration statement,
as amended at the time when it becomes effective under the 1933 Act is
referred to herein as the "Registration Statement". The base prospectus
relating to the sale of the asset backed securities by the Company is
referred to herein as the "Basic Prospectus," and the supplement to the
Prospectus relating to the Securities and contemplated by Section 3(a) hereof
is referred to herein as a "Prospectus Supplement". The Basic Prospectus and
the Prospectus Supplement are collectively referred to as the "Prospectus".
SECTION 1. Representations and Warranties. (a) The Company
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represents and warrants to you as of the date hereof, as of the
date of the Terms Agreement (the "Representation Date"), as follows:
(1) The Registration Statement, at the time the Registration
Statement became effective did, and the Registration Statement,
Prospectus and Prospectus Supplement as of the Representation Date will,
comply in all material respects with the requirements of the 1933 Act
and the Regulations. The Registration Statement, at the time it became
effective did not, and as of the Representation Date 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, in the light of the circumstances under which they were made,
not misleading. The Prospectus, as amended or supplemented as of the
Representation Date, does not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to any statements in, or omissions
from, the Registration Statement or the Prospectus made in reliance upon
and in conformity with information furnished to the Company in writing
by the Underwriter expressly for use in the Registration Statement or
the Prospectus. 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.
(2) The Company has been duly organized 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, lease and operate its
properties and conduct its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement, the
Trust Agreement, the Securities and the Terms Agreement; and the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in the State of New York.
(3) 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 contract, indenture, mortgage, loan agreement, note, lease or
other 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.
(4) The execution and delivery by the Company of this Agreement,
the Terms Agreement and the Trust Agreement 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 the
Securities, neither the issuance and sale of the Securities to the
Underwriter, nor the execution and delivery by the Company of this
Agreement and the Trust Agreement, nor the consummation by the Company
of the transactions therein contemplated, nor compliance by the Company
with the provisions hereof or thereof, will materially conflict with or
result in a material breach of, or constitute a material default under,
any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Company or its properties or
the restated certificate of incorporation or by-laws of the Company, or
any of the provisions of any indenture, mortgage, contract or other
instrument of which the Company is a party or by which it is bound or
result in the creation or imposition of any lien, charge or encumbrance
upon any of its property pursuant to the terms of any such indenture,
mortgage, contract or other instrument.
(5) This Agreement has been, and the 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, 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.
(6) The Trust 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, 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).
(7) As of the Closing Time (as defined in Section 2 below), the
Securities will have been duly and validly authorized by the Company,
and, when executed and authenticated as specified in the Indenture and
the Trust Agreement, will be validly issued and outstanding and will be
entitled to the benefits of the Indenture and the Trust Agreement.
(8) 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
Indenture, the Trust Agreement or the Securities, (ii) seeking to
prevent the issuance of such Securities or the consummation of any of
the transactions contemplated by this Agreement, the Indenture or the
Trust Agreement, (iii) which might materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement or the Securities or (iv) seeking to
adversely affect the federal income tax attributes of the Securities
described in the Prospectus and the Prospectus Supplement.
(9) Any taxes, fees and other governmental charges that are
assessed and due in connection with the execution, delivery and issuance
of this Agreement, the Indenture, the Trust Agreement or the Securities
shall have been paid at or prior to the Closing Time.
(10) No filing or registration with, notice to or consent,
approval, authorization or order of any court or governmental authority
or agency is required for the consummation by the Company of the
transactions contemplated by this Agreement, the Trust Agreement or the
Terms Agreement, except such as may be required under the 1933 Act, the
Regulations, or state securities or Blue Sky laws.
(11) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies 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.
(12) As of the Closing Time, each of the Assets will have the
characteristics described in the Prospectus Supplement.
(13) Neither the Company nor the Trust Fund will be subject to
registration as an "investment company" under the Investment Company Act
of 1940, as amended (the "1940 Act").
(14) At the Closing Time, the Securities, the Indenture, the Trust
Agreement and the Terms Agreement will conform in all material respects
to the descriptions thereof contained in the Prospectus.
(15) At the Closing Time, the Securities shall have received the
certificate ratings specified in the Terms Agreement.
Any certificate signed by an officer of the Company and delivered to you
or counsel for the Underwriter in connection with an offering of Securities
shall be deemed, a representation and warranty as to the matters covered
thereby to each person to whom the representations and warranties in this
Section 1 are made.
SECTION 2. Purchase and Sale. The commitment of the Underwriter
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to purchase Securities pursuant to the Terms Agreement 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 Securities to be
purchased by the Underwriter shall be made at the office of Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, World Financial Center, Xxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, 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 (the "Closing Time"). Payment shall be made
to the Company in immediately available Federal funds wired to such bank as
may be designated by the Company. Such Securities shall be in such
denominations and registered in such names as you may request in writing at
least two business days prior to the Closing Time. Such Securities, which
may be in temporary form, will be made available for examination and
packaging by you no later than 12:00 noon on the first business day prior to
the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with
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you as follows with respect to the Securities:
(a) Contemporaneously with the execution of the Terms Agreement,
the Company will prepare a Prospectus Supplement setting forth the
principal amount of Securities covered thereby, the price or prices at
which the Securities are to be purchased by the Underwriter, the initial
public offering price or prices or the method by which the price or
prices by which the Securities 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 Securities. 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 Underwriter as many copies of the Prospectus and
such Prospectus Supplement as you shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities by you, any
event shall occur or condition exists as a result of which it is neces-
sary, in the opinion of your counsel, counsel for the Company, or
otherwise, to further amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in light of circumstances existing at the time it is delivered
to a purchaser, not misleading or if it shall be necessary, in the
opinion of any such counsel or otherwise, at any such time to amend or
supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the Regulations
thereunder, the Company will promptly prepare and file with the
Commission such amendment or supplement as may be necessary to correct
such untrue statement or omission or to make the Registration Statement
comply with such requirements, and within two business days will furnish
to the Underwriter as many copies of the Prospectus, as so amended or
supplemented, as you shall reasonably request.
(c) 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, 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, and will not file any such amendment or supplement or
other documents in a form to which you or your counsel shall object.
(d) The Company will notify you immediately, and confirm the
notice in writing, (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 Securities Exchange Act of 1934, as amended (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 of any amendment or supplement to the Prospectus
or for additional information, and (v) 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 make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(e) The Company will deliver to you as many signed and 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.
(f) The Company will endeavor, in cooperation with you, to qualify
the Securities 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 Securities. 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 Securities have been qualified as above
provided.
SECTION 4. Conditions of Underwriter's Obligations. The
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obligations of the Underwriter to purchase Securities pursuant to the Terms
Agreement are 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
further conditions:
(a) At the Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued or
proceedings therefor initiated or threatened by the Commission, (ii) the
Securities shall have received the rating or ratings specified in the
Terms Agreement, and (iii) there shall not have come to your attention
any facts that would cause you to believe that the Prospectus at the
time it was required to be delivered to a purchaser of the Securities,
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.
(b) At the Closing Time, you shall have received:
(1) The favorable opinion, dated as of the Closing Time, of
Xxxxx & Xxxx LLP, special counsel to the Company, in form and
substance satisfactory to you, 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) The Company has the corporate power and corporate
authority to carry on its business as described in the
Prospectus and to own and operate its properties in connection
therewith.
(iii) This Agreement has been duly authorized, executed
and delivered by the Company.
(iv) The Trust 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
enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally
and (B) such enforcement may be limited by general principles
of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(v) The execution and delivery by the Company of this
Agreement and Trust 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 Securities, nor the consum-
mation of the transactions contemplated in this Agreement nor
the fulfillment of the terms of this Agreement will result in
any violation of the provisions of the certificate of
incorporation or by-laws of the Company or, to the best of
such counsel's knowledge, any New York or federal law,
administrative regulation or administrative or court decree
applicable to the Company.
(vi) The Securities have been duly authorized by the
Company and, when executed and countersigned as specified in
the Indenture and/or the Trust Agreement and delivered and
paid for pursuant to this Agreement and the Sale Agreement,
will be duly issued and entitled to the benefits of the
Indenture and/or the Trust Agreement.
(vii) To the best of such counsel's knowledge, no filing
or registration with or notice to or consent, approval,
authorization or order of any New York or federal court or
governmental authority or agency is required for the
consummation by the Company of the transactions contemplated
by this Agreement, except such as may be required under the
1933 Act, the Regulations, state securities or Blue Sky laws.
(viii) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge and
information, 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) Neither the Indenture nor the Trust Agreement are
required to be qualified under the Trust Indenture Act of
1939, as amended.
(x) To the best of such counsel's knowledge, 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 thereunder which have not been
so filed.
(xi) The statements in the Prospectus under the heading
"Certain Federal Income Tax Considerations," to the extent
that they constitute matters of law or legal conclusions with
respect thereto, have been prepared or reviewed by such
counsel and are correct in all material respects.
(xii) The Trust Fund is not required to register as an
"investment company" under the Investment Company Act of 1940,
as amended.
(xiii) The statements in the Prospectus under the captions
"Description of the Notes" and "Description of the
Certificates," insofar as such statements purport to summarize
certain provisions of the Securities, the Indenture and the
Trust Agreement, constitute a fair summary of such provisions
in all material respects.
(xiv) The Registration Statement, as of the date it became
effective, and the Prospectus, as of the date thereof (other
than, in each case, the financial statements and other
financial, statistical and numerical information included
therein, as to which no opinion is rendered), complied as to
form in all material respects with the requirements of the
1933 Act and the Regulations thereunder.
Such counsel shall deliver to you such additional opinions addressing
the transfer by the Company to the Trustee of its right, title and interest
in and to the Assets and other property included in the Trust Fund on the
Closing Time as may be required by each Rating Agency rating the Securities.
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 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 (xiii) above) and has made no independent
check or verification thereof for the purpose of rendering this opinion, on
the basis of the foregoing (relying as to materiality to a large extent upon
the certificates of officers and other representatives of the Company),
nothing has come to their attention that leads such counsel to believe that
either the Registration Statement, at the time it became effective, or the
Prospectus at the time the Prospectus was delivered to you contained or at
the Closing Time, contains an untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein, in
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 or omitted from the Registration Statement or
the Prospectus.
Said counsel may state that they are admitted to practice only in the
State of New York, that they are not admitted to the Bar in any other State
and are not experts in the law of any other State and to the extent that the
foregoing opinions concern the laws of any other State such counsel may rely
upon the opinion of counsel satisfactory to the Underwriter and admitted to
practice in such jurisdiction. Any opinions relied upon by such counsel as
aforesaid shall be addressed to the Underwriter and shall be delivered
together with the opinion of such counsel, which shall state that such
counsel believes that their reliance thereon is justified.
(2) The favorable opinion of counsel to the Indenture
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 Indenture Trustee is a New York banking
corporation with trust powers, duly organized and validly
existing in good standing under the laws of New York, and has
all requisite power and authority to enter into the Agreement
and perform the obligations of Indenture Trustee.
(ii) The Indenture has been duly authorized, executed,
and delivered by the Indenture Trustee and constitutes the
legal, valid, and binding obligation of the Indenture Trustee,
enforceable against the Indenture Trustee in accordance with
its terms, except as enforceability may be limited by
applicable bankruptcy and insolvency laws and other similar
laws affecting the enforcement of creditors' rights generally
and by general equity principles.
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 Indenture Trustee or public officials.
(3) The favorable opinion of counsel to the Owner 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 Owner Trustee is a Delaware corporation with
trust powers, duly organized and validly existing in good
standing under the laws of Delaware, and has all requisite
power and authority to enter into the Agreement and perform
the obligations of Owner Trustee.
(ii) The Trust Agreement has been duly authorized,
executed, and delivered by the Owner Trustee and constitutes
the legal, valid, and binding obligation of the Owner Trustee,
enforceable against the Owner Trustee in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy and insolvency laws and other similar laws
affecting the enforcement of creditors' rights generally and
by general equity principles.
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 Owner Trustee or public officials.
(c) At the Closing Time you shall have received a certificate of
an Assistant Vice President (or more senior officer) 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.
(d) You shall have received from independent certified public
accountants acceptable to you, a letter, dated as of the date of the
Terms Agreement, in the form heretofore agreed to.
(e) At the Closing Time, the Securities shall have received the
certificate rating or ratings specified in the Terms Agreement.
(f) At the Closing Time, counsel for the Underwriter shall have
been furnished with such documents as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Securities 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 Securities as herein contemplated shall be
satisfactory in form and substance to you and counsel for the
Underwriter.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the Terms Agreement may be terminated
by you by notice to the Company at any time at or prior to the Closing Time,
and such termination shall be without liability of any party to any other
party except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
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incident to the performance of its obligations under this Agreement and the
Terms Agreement, including without limitation those related to (i) the filing
of the Registration Statement and all amendments thereto, (ii) the printing
and delivery to the Underwriter, in such quantities as you may reasonably
request, of copies of this Agreement, the Terms Agreement, the Memorandum and
any selling agreements and Underwriter's questionnaires and powers of
attorney, (iii) the preparation, issuance and delivery of the Securities to
the Underwriter, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Securities under securities and
Blue Sky laws and the determination of the eligibility of the Securities for
investment in accordance with the provisions of Section 3(f), including
filing fees, and the fees and disbursements of counsel for the Underwriter in
connection therewith and in connection with the preparation of any Blue Sky
Survey and Legal Investment Survey, (vi) the printing and delivery to the
Underwriter, 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 printing and delivery to the Underwriter, in
such quantities as you may reasonably request, of copies of the Pooling and
Servicing Agreement, (viii) the fees charged by investment rating agencies
for rating the Securities, (ix) the fee and expenses, if any, incurred in
connection with the listing of the Securities on any national securities
exchange, and (x) the fees and expenses of the Trustee and its counsel. The
cost of the accountant's comfort letter referred to in Section 3(g) will not
be an expense of the Company.
If a Terms Agreement is terminated by you in accordance with the
provisions of Section 4 or Section 9(i), the Company shall reimburse you for
all reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriter.
SECTION 6. Indemnification.
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(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, unless such untrue statement
or omission or alleged untrue statement or omission was made in reliance
upon and in conformity with written information furnished to the Company
by the Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto);
(ii) against any and all loss, liability, claim, damage
and expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency, or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including
the fees and disbursements of counsel chosen by you) reasonably incurred
in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have. Insofar as this indemnity may permit
indemnification for liabilities under the 1933 Act of any person who is a
partner of the Underwriter entitled to indemnity hereby or who controls the
Underwriter within the meaning of Section 15 of the 1933 Act and who, at the
date of this Agreement, is a director, officer or controlling person of the
Company, such indemnity agreement is subject to the undertaking of the
Company in the Registration Statement.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, each of the Company's directors, each of the Company's officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act against any and all
loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by the Underwriter expressly for
use in the Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which the Underwriter may
otherwise have.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it with respect to which
indemnity may be sought hereunder but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action. In no event
shall the indemnifying parties be liable for the fees and expenses of more
than one counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
SECTION 7. Contribution. In order to provide for just and
------------
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 6 is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company on the one hand, and the Underwriter, on the other, shall contribute
to the aggregate losses, liabilities, claims, damages and expenses of the
nature contemplated by said indemnity agreement incurred by the Company and
the Underwriter in such proportions that the Underwriter is responsible for
that portion represented by the underwriting compensation earned by it bears
to the initial public offering price or prices and the Company shall be
responsible for the balance; provided, however, that 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. For purposes of this Section, each
person, if any, who controls the Underwriter within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as the Underwriter
and each director of the Company, such officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act shall have the same rights
to contribution as the Company.
SECTION 8. 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 any investigation made by
or on behalf of the Underwriter or controlling person thereof, or by or on
behalf of the Company and shall survive delivery of any Securities to the
Underwriter.
SECTION 9. Termination of Agreement. You may terminate the Terms
------------------------
Agreement, immediately upon notice to the Company, at any time at or prior to
the Closing Time (i) if there has been, since the date of the Terms Agreement
or since the respective dates as of which information is given in the Regis-
tration 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 Securities to be purchased
pursuant to the Terms Agreement, or (ii) if there has occurred any outbreak
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 your
judgment, impracticable to market such Securities or enforce contracts for
the sale of such Securities, or (iii) if trading generally on either the New
York Stock Exchange or the American Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either Federal or New York authorities. In
the event of any such termination, (A) the covenants set forth in Section 3
with respect to any offering of such Securities shall remain in effect so
long as the Underwriter owns any such Securities purchased from the Company
pursuant to the Terms Agreement and (B) the covenant set forth in Section
3(c), the provisions of Section 5, the indemnity agreement set forth in
Section 6, the contribution provisions set forth in Section 7, and the
provisions of Section 8 and 13 shall remain in effect.
SECTION 10. Notices. All notices and other communications
-------
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Underwriter shall be directed to you at the address set forth on the
first page hereof, attention Syndicate Department. Notices to the Company
shall be directed to ML Asset Backed Corporation 250 Xxxxx Street, World
Financial Center - Xxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
attention of the Secretary, with a copy to the Treasurer.
SECTION 11. Parties. This Agreement shall inure to the benefit
-------
of and be binding upon you and the Company and the Terms Agreement shall
inure to the benefit of and be binding upon the Company and the Underwriter
and their respective successors. Nothing expressed or mentioned in this
Agreement or the 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 Sections 6 and 7 and their heirs and legal repre-
sentatives any legal or equitable right, remedy or claim under or with
respect to this Agreement or the Terms Agreement or any provision herein or
therein contained. This Agreement and the Terms Agreement and all conditions
and provisions hereof or thereof are intended to be for the sole and
exclusive benefit of the parties and their respective successors and their
heirs and legal representative (to the extent of their rights as specified
herein and therein) and for the benefit of no other person, firm or
corporation. No purchaser of Securities from the Underwriter shall be deemed
to be a successor by reason merely of such purchase.
SECTION 12. Governing Law and Time. This Agreement and the Terms
----------------------
Agreement shall be governed by the laws of the State of New York. Specified
times of day refer to New York City time.
SECTION 13. Counterparts. This Agreement and the Terms Agreement
------------
may be executed in counterparts, 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.
* * *
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,
ML ASSET BACKED CORPORATION
By
-----------------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By____________________________
Name:
Title:
ML ASSET BACKED CORPORATION
ASSET
BACKED SECURITIES
TERMS AGREEMENT
---------------
Dated: ______________, 199_
To: ML Asset Backed Corporation, as depositor under the Trust Agreement
to be dated as of _____________, 199_ (the "Agreement").
Re: Underwriting Agreement dated _____________, 199_.
Series Designation: ML Asset Backed Corporation,
------------------
Asset Backed Securities, Series 199_-_.
Terms of the Notes and Underwriting Compensation:
------------------------------------------------
Class Original Pass-Through Price to
----- Principal Rate Public
Amount ------------ --------
---------
__ $ __________ ___%** ***
__ $ __________ ___% ***
__ $ __________ ___% ***
Terms of the Certificates and Underwriting Compensation:
-------------------------------------------------------
Class Original Pass-Through Price to
----- Principal Rate Public
Amount ------------ --------
---------
__ $ __________ ___%** ***
__ $ __________ ___% ***
__ $ __________ ___% ***
Note [Rating [Rating [Rating
Rating Agency] Agency] Agency]
______ _______ _______ -------
Class __ __ __ __
Class __ __ __ __
Class __ __ __ __
Certificate (Rating (Rating (Rating
Rating Agency) Agency) Agency)
----------- ------- ------- -------
Class __ __ __ __
Class __ __ __ __
Class __ __ __ __
Assets
------
As described in the Prospectus.
Credit Enhancement:
------------------
[ ]
Cut-off Date:
------------
_____________, 199_.
Distribution Date:
-----------------
[ ]
Purchase Price:
--------------
The purchase price payable by the Underwriter for the Offered Notes and
the Offered Certificates is a percentage of the principal amount of such
Class, as follows:
Aggregate Original Percentage
Principal of
Class of Notes Amount Principal
-------------- ------------------ ----------
__ $ _________ _______% *
__ $ _________ %
__ $ _________ %
Aggregate Original Percentage
Class of Principal of
Certificates Amount Principal
------------ ------------------ ----------
__ $ _________ _______% *
__ $ _________ %
__ $ _________ %
* The Offered Notes and the Offered 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.
The undersigned represents and agrees that (i) it has not offered or
sold and, prior to the expiration of the period of six months from the
Closing Date referred to below, will not offer or sell any Offered Notes or
Offered Certificates to persons in the United Kingdom, except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances that have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulation 1995; (ii) it has complied and
will comply with all applicable provisions of the Financial Services Xxx 0000
with respect to anything done by it in relation to the Offered Certificates
in, from or otherwise involving the United Kingdom; and (iii) it has only
issued or passed on and will only issue or pass on in the United Kingdom any
documents received by it in connection with the issue of the Offered Notes or
Offered Certificates to a person who is of a kind described in Article 11(3)
of the Financial Services Xxx 0000 (Investment Advertisements)(Exemptions)
Order 1995, or is a person to whom such document may otherwise lawfully be
issued or passed on.
* * *
Closing Date and Location:
-------------------------
______________, 199_ at the offices of Xxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:_____________________________
Name:
Title:
ACCEPTED:
ML ASSET BACKED CORPORATION
By:__________________________
Name:
Title:
