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Exhibit 1.1
Subject to Completion
XXXXXX XXXXXXX ABS CAPITAL I INC.
ASSET BACKED CERTIFICATES
UNDERWRITING AGREEMENT
__________, 199_
Xxxxxx Xxxxxxx & Co. Incorporated
[Names of Other Co-Managers]
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Xxxxxxx ABS Capital I Inc., a Delaware corporation (the
"Company"), proposes to sell to you (the "Underwriters"), the Asset Backed
Certificates of the series and classes, and in the respective original principal
or notional, as the case may be, amounts or percentage interests, set forth in
Schedule I hereto (the "Offered Certificates"), evidencing ownership interests
in a trust consisting of _____________secured by _______________ to be acquired
by the Company (the "Mortgage Loans") and related property (collectively, the
"Trust Fund"). The Mortgage Loans will be acquired by the Company on the Closing
Date (as defined herein) from the seller (the "Seller") specified in the
Prospectus Supplement (as defined herein) pursuant to a purchase agreement (the
"Mortgage Loan Purchase Agreement") dated the date hereof. The Mortgage Loans
will be of the type and will have the characteristics described in the
Prospectus Supplement, subject to the variances, ranges, minimums and maximums
set forth in the Prospectus Supplement, and will have the aggregate principal
balance set forth in the Prospectus Supplement, subject to an upward or downward
variance in principal balance, not to exceed the percentage set forth in the
Prospectus Supplement, the precise aggregate principal balance within such range
to be determined by the Company in its sole discretion.
The Offered Certificates, together with the other classes of
certificates of the series specified on Schedule II hereto (the "Private
Certificates," and collectively with the Offered Certificates, the
"Certificates") are to be issued under a pooling and servicing agreement (the
"Pooling and Servicing Agreement"), dated as of the Cut-off Date (as defined in
the Prospectus Supplement), among the Company, as Depositor, the master servicer
specified in the Prospectus Supplement (the "Master Servicer"), and the trustee
specified in the Prospectus Supplement (the "Trustee"). The Offered Certificates
of each class will be issued in the minimum denominations and will have the
terms set forth in the Prospectus Supplement. Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Pooling and Servicing Agreement.
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The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (Commission
File No. 333-_____), including a prospectus, relating to the Offered
Certificates and has filed with, or transmitted for filing to, or shall promptly
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the Offered
Certificates pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Act"). The term "Registration Statement" means the registration statement,
including the exhibits thereto, as amended to the date of this Agreement. The
term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Offered Certificates,
together with the Basic Prospectus. As used herein, the terms "Registration
Statement", "preliminary prospectus" or "Prospectus" shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on or before the date on which the Registration
Statement, as amended, became effective or the issue date of such preliminary
prospectus or the date on which the Prospectus is filed pursuant to Rule 424
under the Act, as the case may be; and as used herein, the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the date on which the
Registration Statement became effective or the issue date of any preliminary
prospectus or the date on which the Prospectus is filed pursuant to Rule 424
under the Act, as the case may be, deemed to be incorporated therein by
reference. [If the Company files a registration statement to register a portion
of the Offered Certificates and relies on Rule 462(b) for such registration
statement to become effective upon filing with the Commission (the "Rule 462
Registration Statement"), then any reference to the "Registration Statement"
shall be deemed to refer to both the Registration Statement (Commission File No.
333-19779) and the Rule 462 Registration Statement, in each case as amended from
time to time.]
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(i) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending or, to the
Company's knowledge, threatened by the Commission.
(ii) The Registration Statement and the Prospectus, as of the
date of the Prospectus Supplement, conform, and the Registration
Statement and the Prospectus as revised, amended or supplemented and
filed with the Commission prior to the termination of the offering of
the Offered Certificates, as of their respective effective or issue
dates, will conform in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder
applicable to such documents as of such respective dates, and the
Registration Statement and the Prospectus as revised, amended or
supplemented and filed with the Commission as of the Closing Date will
conform in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder applicable to such
documents as of the Closing Date. The Registration Statement, at the
time it became effective, did not include any untrue statement of a
material fact or omit to state
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a material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus, as of the date
of the Prospectus Supplement, and the Prospectus as revised, amended or
supplemented and filed prior to the Closing Date, as of the Closing
Date, will not include any untrue statement of a material fact and will
not omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representations, warranties or agreements as to (A) the information
contained in the Prospectus or any revision or amendment thereof or
supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by any Underwriter through Xxxxxx
Xxxxxxx & Co. Incorporated specifically for use in connection with the
preparation of the Prospectus or any revision or amendment thereof or
supplement thereto, and (B) any information in any Computational
Materials or ABS Terms Sheets (each as hereinafter defined) required to
be provided by any Underwriter to the Company pursuant to Section 4.2.
(iii) At or prior to the Closing Date, the direction by the
Company to the Trustee to execute, authenticate and deliver the Offered
Certificates will have been duly authorized by the Company, and the
Offered Certificates, when executed and authenticated in accordance
with the Pooling and Servicing Agreement, and delivered to and paid for
by the Underwriters in accordance with the terms of this Agreement,
will be duly and validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement. [Each Certificate of
the classes indicated to be "mortgage related securities" under the
heading "Summary of Terms--Legal Investment" in the Prospectus
Supplement will, when issued, be a "mortgage related security" as such
term is defined in Section 3(a)(41) of the Exchange Act.]
(iv) This Agreement has been duly authorized, executed and
delivered by the Company. At or prior to the Closing Date, the Pooling
and Servicing Agreement will have been duly authorized, executed and
delivered by the Company and will conform in all material respects to
the descriptions thereof contained in the Prospectus and, assuming the
valid execution and delivery thereof by the other parties thereto, the
Pooling and Servicing Agreement will constitute a legal, valid and
binding agreement of the Company enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights
generally, by general principles of equity and by the effect of the
exercise by the Trustee of certain remedial provisions, including
waivers, against the Mortgage Loans.
(v) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own its properties
and conduct its business as described in the Prospectus and to enter
into and perform its obligations under the Pooling and Servicing
Agreement and this Agreement.
(vi) Each preliminary prospectus filed as part of the
Registration Statement as originally filed or as a part of any
amendment thereto, or filed pursuant to Rule 424 or Rule
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462 under the Act, complied as to form, when so filed, in all material
respects with the Act and the rules and regulations of the Commission
thereunder.
(vii) Neither the execution and delivery by the Company of,
nor the performance by the Company of its obligations under, this
Agreement or the Pooling and Servicing Agreement will contravene any
provision of applicable law or the certificate of incorporation or
by-laws of the Company or any agreement or other instrument binding
upon the Company that is material to the Company or any judgment, order
or decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body
or agency is required for the performance by the Company of its
obligations under this Agreement or the Pooling and Servicing
Agreement, except such as may be required by the securities or "blue
sky" laws of the various states in connection with the offer and sale
of the Offered Certificates.
(viii) There are no legal or governmental proceedings pending
or threatened to which the Company is a party or to which any of the
properties of the Company are subject that are required to be described
in the Registration Statement or the Prospectus and that are not so
described, nor are there any statutes, regulations, contracts or other
documents required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(ix) At the time of execution and delivery of the Pooling and
Servicing Agreement, (1) the Company will own the Mortgage Loans being
transferred to the Trust Fund pursuant thereto, free and clear of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other
security interest (collectively, "Liens"), except to the extent
permitted in the Pooling and Servicing Agreement, and will not have
assigned to any person other than the Trust Fund any of its right,
title or interest in the Mortgage Loans, (2) the Company will have the
power and authority to transfer the Mortgage Loans to the Trust Fund
and to transfer the Offered Certificates to you, (3) upon execution and
delivery to the Trustee of the Pooling and Servicing Agreement, and
delivery of the Certificates to the Company, the Trust Fund will own
the Mortgage Loans free of Liens other than Liens permitted by the
Pooling and Servicing Agreement or created or granted by you and (4)
upon payment and delivery of the Offered Certificates to you, you will
acquire ownership of the Offered Certificates, free of Liens other than
Liens permitted by the Pooling and Servicing Agreement or created or
granted by you.
(x) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement,
the Pooling and Servicing Agreement and the Certificates have been or
will be paid by the Company at or prior to the Closing Date, except for
fees for recording assignments of the Mortgage Loans to the Trustee
pursuant to the Pooling and Servicing Agreement that have not yet been
completed, which fees will be paid by or on behalf of the Company in
accordance with the Pooling and Servicing Agreement.
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2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell, and each Underwriter agrees, severally and not jointly,
to purchase from the Company, the respective actual or notional, as the case may
be, amounts or percentage interests set forth in Schedule I hereto in the
respective classes of Offered Certificates at the respective purchase price for
each such class set forth therein.
3. Delivery and Payment. The Offered Certificates shall be
delivered at the office, on the date and at the time specified in, Schedule II
attached hereto, which place, date and time may be changed by agreement between
the Underwriters and the Company (such date and time of delivery of and payment
for such Offered Certificates being hereinafter referred to as the "Closing
Date"). Delivery of the [Class A] Certificates (which [Class A] Certificates
shall also be referred to herein as the "DTC Registered Certificates") shall be
made to you through DTC, and delivery of the [Class B] Certificates and [Class
R] Certificates (collectively, the "Definitive Certificates") shall be made in
registered, certified form, in each case against payment by you of the purchase
prices thereof to or upon the order of the Company by wire transfer in
immediately available funds. The Definitive Certificates shall be registered in
such names and in such denominations as you may request not less than two
business days in advance of the Closing Date. The Company agrees to have the
Definitive Certificates available for inspection, checking and packaging by you
in New York, New York not later than 1:00 p.m., New York City time, on the
business day prior to the Closing Date.
4. Offering by Underwriters.
4.1 It is understood that the Underwriters propose to offer
the Offered Certificates for sale as set forth in the Prospectus and that you
will not offer, sell or otherwise distribute the Offered Certificates (except
for the sale thereof in exempt transactions) in any state in which the Offered
Certificates are not exempt from registration under "blue sky" or state
securities laws (except where the Offered Certificates will have been qualified
for offering and sale at your direction under such "blue sky" or state
securities laws).
4.2 It is understood that the Underwriters may prepare and
provide to prospective investors certain Computational Materials and ABS Term
Sheets (each as defined below) in connection with your offering of the Offered
Certificates, subject to the following conditions:
(a) In connection with the use of Computational Materials, the
Underwriters shall comply with all applicable requirements of the No-Action
Letter of May 20, 1994, issued by the Commission to Xxxxxx, Peabody Acceptance
Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset
Corporation, as made applicable to other issuers and underwriters by the
Commission in response to the request of the Public Securities Association dated
May 24, 1994 (collectively, the "Xxxxxx/PSA Letter"), as well as the PSA Letter
referred to below. In connection with the use of ABS Term Sheets, the
Underwriters shall comply with all applicable requirements of the No-Action
Letter of February 17, 1995, issued by the Commission to the Public Securities
Association (the "PSA Letter" and, together with the Xxxxxx/PSA Letter, the
"No-Action Letters").
(b) "Computational Materials" as used herein shall have the
meaning given such term in the No-Action Letters, but shall include only those
Computational Materials that have been
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prepared or delivered to prospective investors by or at the direction of the
Underwriters. "ABS Term Sheets" and "Collateral Term Sheets" as used herein
shall have the meanings given such terms in the PSA Letter but shall include
only those ABS Term Sheets or Collateral Term Sheets that have been prepared or
delivered to prospective investors by or at the direction of the Underwriters.
(c) All Computational Materials and ABS Term Sheets provided
to prospective investors that are required to be filed pursuant to the No-Action
Letters shall bear a legend on each page including the following statement:
"THIS INFORMATION HAS BEEN PREPARED BY [UNDERWRITER] IN
CONNECTION WITH THE ISSUANCE OF THESE CERTIFICATES BY [XXXXXX
XXXXXXX ____________] BASED ON INFORMATION PROVIDED BY
[SELLER] WITH RESPECT TO THE EXPECTED CHARACTERISTICS OF THE
POOL OF MORTGAGE LOANS IN WHICH THESE CERTIFICATES WILL
REPRESENT UNDIVIDED BENEFICIAL OWNERSHIP INTERESTS. THIS
INFORMATION IS ALSO BASED ON CERTAIN ASSUMPTIONS MADE AT YOUR
REQUEST AND CERTAIN OTHER ASSUMPTIONS SET FORTH HEREIN. THE
ACTUAL CHARACTERISTICS AND PERFORMANCE OF THE MORTGAGE LOANS
WILL DIFFER FROM THE ASSUMPTIONS USED IN PREPARING THESE
MATERIALS, WHICH ARE HYPOTHETICAL IN NATURE. CHANGES IN THE
ASSUMPTIONS MAY HAVE A MATERIAL IMPACT ON THE INFORMATION SET
FORTH IN THESE MATERIALS. NO REPRESENTATION IS MADE THAT ANY
PERFORMANCE OR RETURN INDICATED HEREIN WILL BE ACHIEVED. FOR
EXAMPLE, IT IS VERY UNLIKELY THAT A MORTGAGE LOAN WILL PREPAY
AT A CONSTANT RATE OR FOLLOWING A PREDICTABLE PATTERN. THIS
INFORMATION HAS BEEN PROVIDED TO YOU AT YOUR REQUEST AND MAY
NOT BE USED OR OTHERWISE DISSEMINATED IN CONNECTION WITH THE
OFFER AND SALE OF THESE OR ANY OTHER CERTIFICATES, EXCEPT IN
CONNECTION WITH THE INITIAL OFFER OR SALE OF THESE
CERTIFICATES TO YOU TO THE EXTENT SET FORTH BELOW. NO
REPRESENTATION IS MADE AS TO THE APPROPRIATENESS, USEFULNESS,
ACCURACY OR COMPLETENESS OF THESE MATERIALS OR THE ASSUMPTIONS
ON WHICH THEY ARE BASED. ADDITIONAL INFORMATION IS AVAILABLE
UPON REQUEST. THESE MATERIALS DO NOT CONSTITUTE AN OFFER TO
BUY OR SELL OR A SOLICITATION OF AN OFFER TO BUY OR SELL ANY
CERTIFICATE OR INSTRUMENT OR TO PARTICIPATE IN ANY PARTICULAR
TRADING STRATEGY. ANY SUCH OFFER TO BUY OR SELL ANY
CERTIFICATE WOULD BE MADE PURSUANT TO A DEFINITIVE PROSPECTUS
PREPARED BY [XXXXXX XXXXXXX __________] WHICH WOULD CONTAIN
MATERIAL INFORMATION NOT CONTAINED IN THESE MATERIALS. SUCH
PROSPECTUS
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WILL CONTAIN ALL MATERIAL INFORMATION IN RESPECT OF ANY SUCH
CERTIFICATE OFFERED THEREBY AND ANY DECISION TO INVEST IN SUCH
CERTIFICATES SHOULD BE MADE SOLELY IN RELIANCE UPON SUCH
PROSPECTUS. IN THE EVENT OF ANY SUCH OFFERING, THESE MATERIALS
SHALL BE DEEMED SUPERSEDED, AMENDED AND SUPPLEMENTED IN THEIR
ENTIRETY BY SUCH PROSPECTUS."
The Company shall have the right to require additional specific legends or
notations to appear on any Computational Materials or ABS Term Sheets, the right
to require changes regarding the use of terminology and the right to determine
the types of information appearing therein. Notwithstanding the foregoing,
Section 4.2(c)(i) will be satisfied if all Computational Materials and ABS Term
Sheets referred to therein bear a legend in a form previously approved in
writing by the Company.
(d) Any [Computational Materials and] ABS Term Sheets are
subject to the review by and approval of the Company prior to their distribution
to any prospective investors and a copy of such [Computational Materials and]
ABS Term Sheets as are delivered to prospective investors shall, in addition to
the foregoing delivery requirements, be delivered to the Company simultaneously
with delivery to prospective investors.
(e) The Underwriters shall provide to the Company, for filing
on Form 8-K as provided in Section 5(h), five (5) copies (in such format as
required by the Company) of all Computational Materials and ABS Term Sheets that
are required to be filed with the Commission pursuant to the No-Action Letters.
The Underwriters may provide copies of the forgoing in a consolidated or
aggregate form that includes all information required to be filed. All
Computational Materials and ABS Term Sheets described in this Section 4.2(e)
must be provided to the Company not later than 10:00 a.m. New York time one
business day before filing thereof is required pursuant to the terms of this
Agreement. Each Underwriter agrees that it will not provide to any investor or
prospective investor in the Offered Certificates any Computational Materials or
ABS Term Sheets on or after the day on which Computational Materials and ABS
Term Sheets are required to be provided to the Company pursuant to this Section
4.2(e) (other than copies of Computational Materials or ABS Term Sheets
previously submitted to the Company in accordance with this Section 4.2(e) for
filing pursuant to Section 5(h)), unless such Computational Materials or ABS
Term Sheets are preceded or accompanied by the delivery of a Prospectus to such
investor or prospective investor.
(f) All information included in the Computational Materials
and ABS Term Sheets shall be generated based on substantially the same
methodology and assumptions that are used to generate the information in the
Prospectus Supplement as set forth therein; provided, however, that the
Computational Materials and ABS Term Sheets may include information based on
alternative methodologies or assumptions if specified therein. If any
Computational Materials or ABS Term Sheets that are required to be filed were
based on assumptions with respect to the Mortgage Loans that are incorrect, that
differ from the final [Pool Information (as defined in the Seller
Indemnification Certificate")] in any material respect or on Certificate
structuring terms that were revised in any material respect prior to the
printing of the Prospectus, the Underwriters shall prepare revised Computational
Materials or ABS Term Sheets, as the case may be, based on the final Pool
Information and structuring assumptions, circulate such revised Computational
Materials and ABS
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Term Sheets to all recipients of the preliminary versions thereof that indicated
orally to an Underwriter they would purchase all or any portion of the Offered
Certificates, and include such revised Computational Materials and ABS Term
Sheets (marked, "as revised") in the materials delivered to the Company pursuant
to Section 4.2(e).
(g) The Company shall not be obligated to file any
Computational Materials or ABS Term Sheets that (i) in the reasonable
determination of the Company [and the Underwriters] are not required to be filed
pursuant to the No-Action Letters or (ii) have been determined to contain any
material error or omission, provided that, at the request of an Underwriter, the
Company will file Computational Materials or ABS Term Sheets that contain a
material error or omission if clearly marked "superseded by materials dated
________" and accompanied by corrected Computational Materials or ABS Term
Sheets that are marked "material previously dated __________, as corrected". In
the event that at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, any Computational
Materials or ABS Term Sheets are determined, in the reasonable judgment of the
Company or an Underwriter, to contain a material error or omission, the
applicable Underwriter shall prepare a corrected version of such Computational
Materials or ABS Term Sheets, shall circulate such corrected version of such
Computational Materials and ABS Term Sheets to all recipients of the prior
versions thereof that either indicated orally to such Underwriter they would
purchase all or any portion of the Offered Certificates, or actually purchased
all or any portion thereof, and shall deliver copies of such corrected
Computational Materials and ABS Term Sheets (marked, "as corrected") to the
Company for filing with the Commission in a subsequent Form 8-K submission
(subject to the Company's obtaining an accountant's comfort letter in respect of
such corrected Computational Materials and ABS Term Sheets, which shall be at
the expense of the applicable Underwriter or Underwriters).
(h) Each Underwriter shall deliver to the Company a
certificate, dated as of the date the Underwriter delivers any Computational
Materials and ABS Term Sheets to the Company pursuant to Section 4.2(e), to the
effect that the representations and warranties of such Underwriter contained in
this Section 4.2 are true and correct as of such date. If an Underwriter does
not provide any Computational Materials or ABS Term Sheets to the Company
pursuant to Section 4.2(e), the Underwriter shall be deemed to have represented,
as of the Closing Date, that it did not provide any prospective investors with
any information in written or electronic form in connection with the offering of
the Offered Certificates that is required to be filed with the Commission in
accordance with the No-Action Letters, and the Underwriter shall provide the
Company with a certification to that effect on the Closing Date.
4.3 Each Underwriter represents and warrants and agrees with
the Company that as of the date hereof and as of the Closing Date that: (i) the
Computational Materials and ABS Term Sheets furnished to the Company pursuant to
Section 4.2(e) constitute (either in original, aggregated or consolidated form)
all of the materials furnished to prospective investors by the Underwriter prior
to the time of delivery thereof to the Company that are required to be filed
with the Commission with respect to the Offered Certificates in accordance with
the No-Action Letters, and such Computational Materials and ABS Term Sheets
comply with the requirements of the No-Action Letters; (ii) on the date any such
Computational Materials and ABS Term Sheets with respect to such Certificates
(or any written or electronic materials furnished to prospective investors on
which the Computational Materials and ABS Term Sheets are based) were last
furnished to each prospective investor and on
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the date of delivery thereof to the Company pursuant to Section 4.2(e) and on
the related Closing Date, such Computational Materials and ABS Term Sheets (or
materials) were accurate in all material respects when read in conjunction with
the Prospectus (taking into account the assumptions explicitly set forth in the
Computational Materials, except to the extent of any errors therein that are
caused by errors in the Pool Information; (iii) the Underwriters have not and
will not represent to potential investors that any Computational Materials and
ABS Term Sheets were prepared or disseminated on behalf of the Company; and (iv)
all Computational Materials and ABS Terms Sheets (or underlying materials
distributed to prospective investors on which the Computational Materials and
ABS Term Sheets were based) contained and will contain the legend in the form
set forth in Section 4.2(c) (or in such other form previously approved in
writing by the Company).
Notwithstanding the foregoing, the Underwriters make no
representation or warranty as to whether any Computational Materials or ABS Term
Sheets (or any written or electronic materials furnished to prospective
investors on which the Computational Materials or ABS Term Sheets are based)
included or will include any inaccurate statement resulting directly from any
error contained in the Pool Information.
5. Agreements. The Company agrees with each Underwriter that:
(a) The Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424 under the Act by
means reasonably calculated to result in filing with the Commission pursuant to
said rule and, if necessary, within 15 days of the Closing Date, will transmit
for filing by means reasonably calculated to result in filing with the
Commission a report on Form 8-K for purposes of filing the Pooling and Servicing
Agreement, and will promptly advise each Underwriter when the Prospectus
Supplement has been so filed.
(b) Prior to the termination of the offering of the Offered
Certificates, the Company will promptly advise each Underwriter (i) when any
amendment to the Registration Statement has become effective or any revision of
or supplement to the Prospectus has been so filed (unless such amendment,
revision or supplement does not relate to the Certificates), (ii) of any request
by the Commission for any amendment of the Registration Statement or the
Prospectus or for any additional information (unless such request for additional
information does not relate to the Certificates), (iii) of any written
notification received by the Company of the suspension of qualification of the
Offered Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or to the knowledge of the Company, the threatening
of any proceeding for that purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof. Except as otherwise provided in Section 5(c),
the Company will not file prior to the termination of such offering any
amendment to the Registration Statement or any revision of or supplement to the
Prospectus (other than any such amendment, revision or supplement which does not
relate to the Certificates) which shall be disapproved by the Underwriters after
reasonable notice and review of such filing.
(c) If at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act (i) any event occurs as a
result of which the Prospectus as then
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amended or supplemented would include any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein in the
light of the circumstances under which they were made not misleading, or (ii) it
shall be necessary to revise, amend or supplement the Prospectus to comply with
the Act or the rules and regulations of the Commission thereunder, the Company
promptly will notify each Underwriter and will, upon the request of any
Underwriter, or may, after consultation with each Underwriter, prepare and file
with the Commission a revision, amendment or supplement which will correct such
statement or omission or effect such compliance, and furnish without charge to
each Underwriter as many copies as such Underwriter may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance.
(d) The Company will furnish to each Underwriter and counsel
to each Underwriter, without charge, conformed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a prospectus
relating to the Offered Certificates is required under the Act, as many copies
of the Prospectus and any revisions or amendments thereof or supplements thereto
as may be reasonably requested.
(e) The Company will endeavor to arrange for the qualification
of the Offered Certificates for sale under the laws of such jurisdictions as you
may reasonably designate and will maintain such qualification in effect so long
as required for the initial distribution of the Offered Certificates; provided,
however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is now so subject.
(f) Whether or not the transactions contemplated in the
Pooling and Servicing Agreement are consummated or this Agreement is terminated,
the Company shall pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel in connection with the
registration and delivery of the Offered Certificates under the Act and all
other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Offered
Certificates to the Underwriters, including any transfer or other taxes payable
thereon, (iii) the cost of printing or producing any "blue sky" memorandum in
connection with the offer and sale of the Offered Certificates under state
securities laws and all expenses in connection with the qualification of the
Offered Certificates for offer and sale under state securities laws as provided
in Section 5(e), including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection with such qualification and in
connection with the "blue sky" memorandum, (vi) all filing fees and
disbursements of counsel for the Underwriters incurred in connection with any
review and qualification of the offering by the National Association of
Securities Dealers, Inc., (v) the cost of printing the Offered Certificates,
(vi) the costs and charges of any transfer agent, registrar or depositary, and
(vii) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise made
in this Section. It is understood, however, that except as provided in Section
7, the Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock
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transfer taxes payable on resale of any of the Offered Certificates by them, and
any advertising expenses connected with any offers they may make.
(g) So long as any Offered Certificates are outstanding, upon
request of an Underwriter, the Company will, or will cause the Master Servicer
to, furnish to such Underwriter, as soon as available, a copy of (i) the annual
statement of compliance delivered by the Master Servicer to the Trustee under
the Pooling and Servicing Agreement, (ii) the annual independent public
accountants' servicing report furnished to the Trustee pursuant to the Pooling
and Servicing Agreement, (iii) each report of the Company regarding the Offered
Certificates filed with the Commission under the Exchange Act or mailed to the
holders of the Offered Certificates and (iv) from time to time, such other
information concerning the Offered Certificates which may be furnished by the
Company or the Master Servicer without undue expense and without violation of
applicable law.
(h) The Company shall file the Computational Materials and ABS
Term Sheets (if any) provided to it by the Underwriters under Section 4.2(e)
with the Commission pursuant to a Current Report on Form 8-K by 10:00 a.m. on
the morning the Prospectus is delivered to the Underwriters or, the case of any
Collateral Term Sheet required to be filed prior to such date, by 10 a.m. on the
second business day following the first day on which such Collateral Term Sheet
has been sent to a prospective investor; provided, however, that prior to such
filing of the Computational Materials and ABS Term Sheets (other than any
Collateral Term Sheets that are not based on the Pool Information) by the
Company, the Underwriters must comply with their obligations pursuant to Section
4.2 and the Company must receive a letter from _______________, certified public
accountants, satisfactory in form and substance to the Company and its counsel,
to the effect that such accountants have performed certain specified procedures,
all of which have been agreed to by the Company, as a result of which they
determined that all information that is included in the Computational Materials
and ABS Term Sheets (if any) provided by the Underwriters to the Company for
filing on Form 8-K, as provided in Section 4.2 and this Section 5(h), is
accurate except as to such matters that are not deemed by the Company to be
material. The foregoing letter shall be at the expense of the Underwriters. The
Company shall file any corrected Computational Materials or ABS Terms Sheets
described in Section 4.2(g) as soon as practicable following receipt thereof.
6. Conditions to the Obligations of Underwriters. The
obligation of each Underwriter to purchase the Offered Certificates to be
purchased by it shall be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company contained herein as of
the date hereof and as of the Closing Date, to the accuracy of the statements of
the Company made in any officer's certificate pursuant to the provisions hereof,
to the performance in all material respects by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that purpose
shall be pending or, to the knowledge of the Company, threatened, and the
Prospectus Supplement shall have been filed or transmitted for filing by means
reasonably calculated to result in a filing with the Commission pursuant to Rule
424 under the Act.
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(b) The Company shall have furnished to the Underwriters a
certificate, dated the Closing Date, of the Company, signed by a vice president
of the Company, to the effect that the signer of such certificate has carefully
examined the Registration Statement, the Prospectus and this Agreement and that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date,
and the Company has complied with all agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that
purpose have been instituted and are pending or, to his knowledge, have
been threatened as of the Closing Date; and
(iii) Nothing has come to the attention of such person that
would lead him to believe that the Prospectus (other than any
Computational Materials or ABS Term Sheets incorporated therein by
reference) contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
The officer signing and delivering such certificate may rely upon the best of
his knowledge as to proceedings threatened.
(c) The Company shall have furnished or caused to have been
furnished to the Underwriters a certificate, dated the Closing Date, of the
Seller, signed by a vice president or an assistant vice president of the Seller,
to the effect that the signer of such certificate has carefully examined the
Prospectus and nothing has come to the attention of such person that would lead
him to believe that the Prospectus contains any untrue statement of a material
fact with respect to the Seller or the Mortgage Loans or omits to state any
material fact with respect to the Seller or the Mortgage Loans necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(d) The Company shall have furnished to you an opinion, dated
the Closing Date, of Xxxxxx & Xxxxxxx, counsel to the Company, substantially to
the effect that:
(i) The Registration Statement and any amendments thereto
have become effective under the Act; to the best knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued and not withdrawn, no proceedings for that
purpose have been instituted or threatened and not terminated; and the
Registration Statement, the Prospectus and each amendment or supplement
thereto, as of their respective effective or issue dates (other than
the financial and statistical information contained therein as to which
such counsel need express no opinion), complied as to form in all
material respects with the applicable requirements of the Act and the
rules and regulations of the Commission thereunder;
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(ii) To the best knowledge of such counsel, there are no
material contracts, indentures or other documents of a character
required to be described or referred to in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto;
(iii) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware [and is duly qualified to do business in, and is in good
standing as a foreign corporation under the laws of, the State of New
York].
(iv) This Agreement has been duly authorized, executed and
delivered by the Company;
(v) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Company and, assuming the due
authorization execution and delivery by other parties thereto,
constitutes a valid, legal and binding agreement of the Company, is
enforceable against the Company in accordance with its terms, subject
as to enforceability to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally,
to general principles of equity regardless of whether enforcement is
sought in a proceeding in equity or at law and to the effect of the
exercise by the Trustee of certain remedial provisions, including
waivers, against the Mortgage Loans;
(vi) The Offered Certificates have been duly authorized and,
assuming authentication and delivery in the manner contemplated in the
Pooling and Servicing Agreement, and upon delivery by the Company of
the Offered Certificates to be purchased by the Underwriters and
payment by the Underwriters of the purchase price therefore in the
manner contemplated by this Agreement, the Offered Certificates will be
(A) validly issued and outstanding and entitled to the benefits of the
Pooling and Servicing Agreement and (B) free and clear of any lien,
pledge, encumbrance or other security interest other than one permitted
by the Pooling and Servicing Agreement or created or granted by any
Underwriter;
(vii) To the best knowledge of such counsel, no consent,
approval, authorization or order of any New York, Delaware or federal
governmental agency or body or any New York, Delaware or federal court
is required for the consummation by the Company of the transactions
contemplated by the terms of this Agreement or the Pooling and
Servicing Agreement, except such as may be required under the "blue
sky" or state securities laws of any jurisdiction in connection with
the offering, sale or acquisition of the Offered Certificates, any
recordations of the assignment of the Mortgage Loans to the Trustee (to
the extent such recordations are required pursuant to the Pooling and
Servicing Agreement) that have not yet been completed and such other
approvals as have been obtained;
(viii) The sale of the Offered Certificates to be purchased by
the Underwriters pursuant to this Agreement and the consummation of any
of the transactions contemplated by the terms of the Pooling and
Servicing Agreement or this Agreement do not conflict with or result in
a breach or violation of any material term or provision of, or
constitute a default
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under, the certificate of incorporation of the Company, or to the best
knowledge of such counsel, any indenture or other agreement or
instrument to which the Company is a party or by which it is bound, or
any New York, Delaware or federal statute or regulation applicable to
the Company or an order of any New York, Delaware or federal court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Company;
(ix) The Offered Certificates and the Pooling and Servicing
Agreement conform to the descriptions thereof contained in the
Prospectus;
(x) The statements in the Prospectus and the Prospectus
Supplement, as the case may be, under the headings "Federal Income Tax
Consequences" and "ERISA Considerations," to the extent that they
constitute matters of New York or federal law or legal conclusions with
respect thereto, have been reviewed by such counsel and are correct in
all material respects;
(xi) [The Certificates indicated under the heading "Summary of
Terms--Legal Investment" in the Prospectus Supplement to be "mortgage
related securities" will be mortgage related securities, as defined in
Section 3(a)(41) of the Exchange Act, so long as such Certificates are
rated in one of the two highest rating categories by at least one
nationally recognized statistical rating organization;] [and]
(xii) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended, and the
Trust Fund created by the Pooling and Servicing Agreement is not
required to be registered under the Investment Company Act of 1940, as
amended[.] [; and]
[(xiii) The Trust Fund as described in the Prospectus
Supplement and the Pooling and Servicing Agreement will qualify as a
"real estate mortgage investment conduit" ("REMIC") within the meaning
of Section 860D of the Internal Revenue Code of 1986, as amended (the
"Code"), assuming: (i) an election is made to treat the Trust Fund as a
REMIC, (ii) compliance with the Pooling and Servicing Agreement and
(iii) compliance with changes in the law, including any amendments to
the Code or applicable Treasury regulations thereunder.]
Such counsel shall also state that nothing has come to its
attention that would lead such counsel to believe that the Registration
Statement, at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Prospectus Supplement, and on the Closing
Date, contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express no view as to (i)
financial and statistical information contained therein or (ii) any description
in the Prospectus of any third party providing credit enhancement to the
Certificates.
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Such opinion may express its reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement and the
Pooling and Servicing Agreement. Such opinion may assume the due authorization,
execution and delivery of the instruments and documents referred to therein by
the parties thereto other than the Company or its affiliates. Such opinion may
be qualified as an opinion only on the corporate laws of the State of Delaware,
the laws of the State of New York and the federal law of the United States. To
the extent that such counsel relies upon the opinion of other counsel in
rendering any portion of its opinion, the opinion of such other counsel shall be
attached to and delivered with the opinion of such counsel that is delivered to
the Underwriters.
(e) Each party providing credit enhancement to the
Certificates shall have furnished to the Underwriters an opinion, dated the
Closing Date, of its counsel, with respect to the Registration Statement and the
Prospectus, and such other related matters, in the form previously agreed to by
such provider and the Underwriters.
(f) The Underwriters shall have received from their counsel
such opinion or opinions, dated the Closing Date, with respect to the issuance
and sale of the Offered Certificates, the Registration Statement and the
Prospectus, and such other related matters as you may reasonably require.
(g) You shall have received from __________________, certified
public accountants, (a) a letter dated the date hereof and satisfactory in form
and substance to you and your counsel, to the effect that they have performed
certain specified procedures, all of which have been agreed to by you, as a
result of which they determined that certain information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement under the
captions "Description of the Mortgage Pool," "Description of the Certificates"
and "Yield and Maturity Considerations" agrees with the records of the Company
and the Seller excluding any questions of legal interpretation and (b) the
letter prepared pursuant to Section 5(h).
(h) Subsequent to the date hereof, there shall not have
occurred any change, or any development involving a prospective change, in or
affecting the business or properties of the Seller which in your reasonable
judgment materially impairs the investment quality of the Offered Certificates
so as to make it impractical or inadvisable to proceed with the public offering
or the delivery of the Offered Certificates as contemplated by the Prospectus.
(i) The Offered Certificates shall be rated not lower than the
required ratings set forth under the heading "Ratings" in the Prospectus
Supplement, such ratings shall not have been rescinded and no public
announcement shall have been made that any such required rating of the Offered
Certificates has been placed under review (otherwise than for possible
upgrading).
(j) The Underwriters shall have received copies of any
opinions of counsel to the Company supplied to the rating organizations relating
to certain matters with respect to the Certificates. Any such opinions shall be
dated the Closing Date and addressed to the Underwriters or accompanied by
reliance letters addressed to the Underwriters.
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(k) All Classes of Certificates being publicly offered by the
Underwriters shall have been issued and paid for pursuant to the terms of this
Agreement.
(l) The Trustee shall have furnished to the Underwriters an
opinion dated the Closing Date, of counsel to the Trustee (who may be an
employee of the Trustee), substantially to the effect that:
(i) The Trustee has full corporate power and authority to
execute and deliver the Pooling and Servicing Agreement and to perform
its obligations thereunder and to execute, countersign and deliver the
Certificates.
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Trustee.
(iii) The Pooling and Servicing Agreement is a legal, valid
and binding obligation of the Trustee, enforceable against the Trustee
in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, receivership, conservatorship
and similar laws affecting the rights of creditors generally, and
subject, as to enforceability, to general principles of equity,
regardless of whether such enforcement is considered in a proceeding at
law or equity.
Such opinion may express its reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to the Pooling and Servicing
Agreement. Such opinion may assume the due authorization, execution and delivery
of the instruments and documents referred to therein by the parties thereto
other than the Trustee or its affiliates. Such opinion may be qualified as an
opinion only on the laws of the State of New York and the federal law of the
United States. To the extent that such counsel relies upon the opinion of other
counsel in rendering any portion of its opinion, the opinion of such other
counsel shall be attached to and delivered with the opinion of such counsel that
is delivered to the Underwriters.
(m) The Seller shall have sold the Mortgage Loans to the
Company pursuant to the Mortgage Loan Purchase Agreement.
(n) The Company shall have furnished to the Underwriters such
further information, certificates and documents as the Underwriters may
reasonably have requested, and all proceedings in connection with the
transactions contemplated by this Agreement and all documents incident hereto
shall be in all material respects reasonably satisfactory in form and substance
to the Underwriters and their counsel.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, this Agreement and all obligations of an Underwriter hereunder may be
canceled at, or at any time prior to, the Closing Date by such Underwriter.
Notice of such cancellation shall be given to the Company in writing, or by
telephone or telegraph confirmed in writing.
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7. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each of the Underwriters and each person, if any,
who controls either such Underwriter within the meaning of either Section 15 of
the Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act, or other Federal or State
Statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) were caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, any preliminary prospectus or the Prospectus (if
used within the period mentioned in Section 5(c) and as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto), or
were caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities were
caused by any such untrue statement or omission or alleged untrue statement or
omission made therein based upon and in conformity with (i) the information
furnished in writing to the Company by any Underwriter through Xxxxxx Xxxxxxx &
Co. Incorporated specifically for use in connection with the preparation of the
Registration Statement, any preliminary prospectus or the Prospectus or any
revision or amendment thereof or supplement thereto and (ii) any information in
any Computational Materials or ABS Terms Sheets required to be provided by any
Underwriter to the Company pursuant to Section 4.2. Such indemnity with respect
to any Corrected Statement (as defined below) in such Prospectus (or supplement
thereto) shall not inure to the benefit of the Underwriters (or any person
controlling either of the Underwriters) from whom the person asserting any loss,
claim, damage or liability purchased the Offered Certificates that are the
subject thereof if such person did not receive a copy of the supplement to such
Prospectus at or prior to the confirmation of the sale of such Certificates and
the untrue statement or omission of a material fact contained in such Prospectus
(or supplement thereto) was corrected (a "Corrected Statement") in such other
supplement and such supplement was furnished by the Company to the Underwriters
prior to the delivery of such confirmation.
The Underwriters agree, severally and not jointly, to
indemnify and hold harmless the Company and its directors and officers who sign
the Registration Statement and any person controlling the Company within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act, to
the same extent as the foregoing indemnity from the Company to the Underwriters,
but only with reference to (i) information relating to the Underwriters
furnished in writing to the Company by any Underwriter specifically for use in
connection with the preparation of the Registration Statement, any preliminary
prospectus or the Prospectus or any revision or amendment thereof or supplement
thereto and (ii) any Computational Materials, the ABS Term Sheets or the
Collateral Term sheets, as applicable.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own
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counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated in the case of
parties indemnified pursuant to the first paragraph of this Section 7 and by the
Company in the case of parties indemnified pursuant to the second paragraph of
this Section 7. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claim that are the subject matter of such
proceeding.
To the extent the indemnification provided for in this Section
7 is unavailable to an indemnified party under the first or second paragraph of
this Section 7 or is insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand, and the Underwriters on the
other, from the offering of the Offered Certificates or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand, and of each of the Underwriters on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand, and each of the
Underwriters on the other, in connection with the offering of the Offered
Certificates shall be deemed to be in the same respective proportions that the
total net proceeds from the offering of the Offered Certificates (before
deducting expenses) received by the Company and the total underwriting discounts
and commissions received by each of the Underwriters in respect thereof
respectively, bear to the aggregate public offering price of the Offered
Certificates. The relative fault of the Company on the one hand, and of each of
the Underwriters on the other, shall
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be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. Each
Underwriter's obligation to contribute pursuant to this Section 7 is several in
proportion to the respective principal amounts of Offered Certificates it has
purchased hereunder, and not joint.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which [the total
underwriting discounts and commissions received by such Underwriter in
connection with the Offered Certificates underwritten and distributed to the
public by such Underwriter] [the total price at which the Offered Certificates
underwritten by it and distributed to the public were offered to the public]
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission. No person guilty or fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Underwriters or any person controlling either of the Underwriters or by
or on behalf of the Company, its directors or officers or any person controlling
the Company and (iii) acceptance of any payment for any of the Offered
Certificates.
8. Termination. This Agreement shall be subject to termination
in Xxxxxx Xxxxxxx & Co. Incorporated's absolute discretion, by notice given to
the Company, if (a) after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Operations Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Underwriters, is material and adverse and (b) in the case of any of the
events specified in clauses (a)(i) through (iv) above, such event singly or
together
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with any other such event, makes it, in the judgment of the Underwriters,
impracticable to market the Offered Certificates on the terms and in the manner
contemplated in the Prospectus.
9. Default by an Underwriter. If any one or more of the
Underwriters shall fail to purchase and pay for any of the Offered Certificates
agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions which
the aggregate principal amount of all the Offered Certificates of the various
Classes set forth opposite their names in the Prospectus Supplement bears to the
aggregate principal amount of all of the Offered Certificates of the various
Classes set forth opposite the name of all the remaining Underwriters) the
Offered Certificates that the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
principal amount of Offered Certificates which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of all of the Offered Certificates set forth in the Prospectus
Supplement, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Offered Certificates,
and if such nondefaulting Underwriters do not purchase all the Offered
Certificates, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding seven days, as the nondefaulting Underwriters
shall determine in order that required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and to any nondefaulting Underwriter for
damages occasioned by its defaulting hereunder.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of the failure or refusal on the part of the Company to
comply with the terms or fulfill any of the conditions of this Agreement, or if
for any reason the Company shall be unable to perform its obligations under this
Agreement, the Company shall reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Offered Certificates.
10. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of the Company, its officers and the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any termination of this Agreement, any investigation made by or on
behalf of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 7 and delivery of and payment for the
Offered Certificates.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
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12. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
15. Notices. All communications hereunder shall be in writing
and effective only on receipt and, if sent to an Underwriter, shall be delivered
to the address specified on the signature page hereof; or if sent to the
Company, shall be delivered to 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention of General Counsel.
16. Miscellaneous. Time shall be of the essence of this
Agreement. This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof[, other than the Seller
Indemnification Certificate]. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
by and among the Company and each Underwriter on [______________, 199__]
relating to the [________________] Asset Backed Certificates Series 199_-__
issued by the _________ ______________________.
Very truly yours,
[ ]
By:
--------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted.
Accepted, _______________, 199_
XXXXXX XXXXXXX & CO.
INCORPORATED
[NAMES OF OTHER CO-MANAGERS]
Acting severally on behalf of themselves and
the several Underwriters named in Schedule I
hereto.
By Xxxxxx Xxxxxxx & Co.
Incorporated
By:
-------------------------
Name:
Title:
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SCHEDULE I
I-1
24
SCHEDULE II
II-1
