MLCC MORTGAGE INVESTORS, INC.
and
XXXXXXX XXXXX CREDIT CORPORATION
ML Revolving Equity Loan Asset Backed Certificates
UNDERWRITING AGREEMENT
----------------------
____________, 199_
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
MLCC Mortgage Investors, Inc. (the "Company"), a Delaware corporation,
with its principal place of business in Jacksonville, Florida, is a wholly-
owned limited-purpose finance company of Xxxxxxx Xxxxx Credit Corporation
("MLCC"), a Delaware corporation, which is an indirect wholly-owned
subsidiary of Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation. The Company
has authorized the issuance and sale of Asset Backed Certificates having
aggregate outstanding principal balances of up to approximately
$__________________ (such certificates evidencing interests in pools of
mortgage related assets, the "Certificates"). The Certificates may be issued
in various series, and, within each series, in one or more classes, and,
within each class, in one or more sub-classes, in one or more offerings on
terms determined at the time of sale (each such series, a "Series" and each
such class, a "Class"). Each Series of the Certificates will be issued under
a separate pooling and servicing agreement (each, a "Pooling and Servicing
Agreement") with respect to such Series among the Company, as seller, MLCC,
as master servicer or servicer, to be identified in the prospectus supplement
for each such Series (the "Master Servicer" and "Servicer", respectively) and
a trustee to be identified in the prospectus supplement for each such Series
(the "Trustee"). The Certificates of each Series will evidence specified
interests in separate pools (each, a "Mortgage Pool") of mortgage related
assets, including residential first mortgage loans and home equity revolving
credit line mortgage loans (the "Mortgage Loans") and certain other property
held in trust with respect to such Series (each, a "Trust Fund"). The form
of Pooling and Servicing Agreement has been filed as an exhibit to the
Registration Statement (hereinafter defined).
With respect to a Series of Certificates, the Certificates are more
fully described in a Prospectus and Prospectus Supplement (hereinafter
defined) which the Company has furnished to you. Capitalized terms used but
not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement. The term "you" as used herein, unless the context
otherwise requires, shall mean you and such persons, if any, as are named as
co-managers in the applicable Terms Agreement (defined below).
Each offering of Certificates pursuant to this Agreement will be made
through you or through an underwriting syndicate managed by you. When the
Company determines to make an offering of Certificates it will enter into an
agreement (the "Terms Agreement") providing for the sale of such Certificates
to, and the purchase and offering thereof by, you and such other
underwriters, if any, selected by you as have authorized you to enter into
such Terms Agreement on their behalf (the "Underwriter," which term shall
include you whether acting alone in the sale of Certificates or as a member
of an underwriting syndicate). The Terms Agreement relating to each offering
of Certificates shall specify, among other things, the principal amount or
amounts of Certificates to be issued, the price or prices at which the
Certificates 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 Certificates are to be sold will be determined. A Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written
telecommunication between you and the Company. Each offering of Certificates
will be governed by this Agreement, as supplemented by the applicable Terms
Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon the Underwriter or Underwriters participating
in the offering of such Certificates.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. _____________)
relating to the Certificates, 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 to the date hereof and as shall be required after 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 it became effective under the 1933 Act and at the
Representation Date (defined below), is referred to herein as the
"Registration Statement". The base prospectus relating to the sale of a
particular Series of Certificates by the Company is referred to herein as the
"Basic Prospectus," and a supplement to the Prospectus contemplated by
Section 4(a) hereof is referred to herein as a "Prospectus Supplement". The
Basic Prospectus and the related Prospectus Supplement are collectively
referred to as the "Prospectus".
SECTION 1. Representations and Warranties. (a) The Company
------------------------------
represents and warrants to, and agrees with, you as of the date hereof, and
to the Underwriters, if any, named in the Terms Agreement, all as of the date
of such Terms Agreement (in each case, the "Representation Date"), as
follows:
(1) The Registration Statement, at the time the Registration
Statement became effective did, and the Registration Statement and the
Prospectus as of the applicable 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 applicable 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 applicable 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
(i) 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 or (ii) information in
any "Computational Materials" or "Structural Term Sheets" (each as
hereinafter defined) provided by the Underwriter to the Company pursuant
to Section 6 except to the extent that the information set forth therein
is based on or constitutes "Pool Information". As used herein, Pool
Information means information with respect to the characteristics of the
Mortgage Loans as provided by, or on behalf of, the Company or MLCC to
the Underwriter in final form and set forth in the Prospectus
Supplement. 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
applicable Pooling and Servicing Agreement, and with respect to a Series
of Certificates, the Certificates and the applicable Terms Agreement;
and the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which the owner-
ship or lease of its properties or the conduct of its business requires
such qualification.
(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 applicable Terms Agreement and the applicable Pooling and Servicing
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 a Series of Certificates, neither the issu-
ance and sale of the Certificates to the Underwriter, nor the execution
and delivery by the Company of this Agreement and the related Pooling
and Servicing 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 applicable Terms Agreement
when executed and delivered as contemplated hereby and thereby, will
have been duly authorized, executed and delivered by the Company, and
each constitutes, or will constitute when so executed and delivered, a
legal, valid and binding instrument enforceable against the Company in
accordance with its terms, 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 applicable Pooling and Servicing Agreement when executed
and delivered as contemplated hereby and thereby will have been duly
authorized, executed and delivered by the Company, and will constitute
when so executed and delivered, a legal, valid and binding instrument
enforceable against the Company in accordance with its terms, 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 3 below) with
respect to a Series of Certificates, the Certificates will have been
duly and validly authorized by the Company, and, when executed and
authenticated as specified in the Pooling and Servicing Agreement, will
be validly issued and outstanding and will be entitled to the benefits
of the Pooling and Servicing 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
applicable Terms Agreement and Pooling and Servicing Agreement or with
respect to a Series of Certificates, the Certificates, (ii) seeking to
prevent the issuance of such Certificates or the consummation of any of
the transactions contemplated by this Agreement or such Pooling and
Servicing 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 such Certificates or (iv)
seeking to adversely affect the federal income tax attributes of such
Certificates described in the Prospectus and the related Prospectus
Supplement.
(9) 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 applicable Pooling and
Servicing Agreement or the applicable Terms Agreement, except such as
may be required under the 1933 Act, the Regulations, or state securities
or Blue Sky laws.
(10) 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.
(11) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise
stated therein, there has been no material adverse change in the
business, properties or financial condition of the Company, whether or
not arising in the ordinary course of business.
(12) As of the Closing Time, the Company (i) will have good and
marketable title to the Mortgage Loans being transferred by it to the
Trustee 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
applicable Pooling and Servicing Agreement, (ii) will not have assigned
to any person any of its right, title or interest in such Mortgage Loans
or in such Pooling and Servicing Agreement and (iii) will have the power
and authority to sell such Mortgage Loans to the Trustee, and upon the
execution and delivery of the applicable Pooling and Servicing Agreement
by the Trustee, the Trustee will have acquired beneficial ownership of
all of the Company's right, title and interest in and to the Trust
Balance (as defined in the applicable Pooling and Servicing Agreement)
of the Mortgage Loans except to the extent disclosed in the Prospectus
and upon delivery to the Underwriter of the Certificates and payment by
the Underwriter for the Certificates the Underwriter will have title to
the Certificates, in each case free of Liens except to the extent
permitted by the applicable Pooling and Servicing Agreement.
(13) Any taxes, fees and other governmental charges in connection
with the execution and delivery of this Agreement, the applicable Terms
Agreement and Pooling and Servicing Agreement and with respect to a
Series of Certificates, the execution, issuance, delivery and sale of
the Certificates which have become due or will be due on or prior to the
Closing Time shall have been or will be paid on or prior to the Closing
Time.
(14) As of the Closing Time, with respect to a Series of
Certificates, each of the Mortgage Loans will have the characteristics
described in the Prospectus Supplement.
(15) Neither the Company nor the Trust Fund created by the
applicable Pooling and Servicing Agreement will be subject to
registration as an "investment company" under the Investment Company Act
of 1940, as amended (the "1940 Act").
(16) The transfer of the Trust Balances of the Mortgage Loans to
the Trustee at the Closing Time will be treated by the Company as a sale
of assets, and not as a pledge of assets to secure debt, for federal
income tax and financial reporting purposes.
(17) At the Closing Time, with respect to a Series of
Certificates, the Certificates shall have received the certificate
ratings specified in the Prospectus.
(18) At the Closing Time, with respect to a Series of
Certificates, each of the representations and warranties of the Company
set forth in the applicable Pooling and Servicing Agreement will be true
and correct.
(19) As of the Closing Time, with respect to a Series of
Certificates, any corporate guaranty relating to, among other things,
the obligations of the Master Servicer or Servicer to make advances (a
"Guaranty") will have been duly and validly authorized, executed and
delivered by, and will constitute a legal, valid and binding obligation
of, the guarantor (the "Guarantor"), subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and as to enforceability to general
principles of equity (regardless whether such enforceability is
considered in a proceeding in equity or at law).
(b) MLCC represents and warrants to, and agrees with, you as of the
date hereof, and to the Underwriters, if any, named in the Terms Agreement,
all as of the Representation Date, as follows:
(1) MLCC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own, lease and
operate its properties and to conduct its business, as now conducted by
it, and to enter into and perform its obligations under this Agreement,
the applicable Terms Agreement and Pooling and Servicing Agreement.
(2) This Agreement has been, and the applicable Pooling and
Servicing Agreement and Terms Agreement when executed and delivered as
contemplated hereby and thereby, will have been duly authorized,
executed and delivered by MLCC, and each constitutes, or will constitute
when so executed and delivered, a legal, valid and binding instrument
enforceable against MLCC 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.
(3) The execution, delivery and performance of this Agreement, the
applicable Terms Agreement and Pooling and Servicing Agreement and the
consummation of the transactions contemplated herein and therein have
been duly authorized by all necessary corporate action of MLCC and will
not conflict with or constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of MLCC pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease, pooling and servicing agreement
or other instrument to which MLCC is a party or by which it may be
bound, or to which any of the property or assets of MLCC is subject, nor
will such actions result in any violation of the provisions of the
certificate of incorporation or by-laws of MLCC or to the best knowledge
of MLCC, any applicable law, administrative regulation or administrative
or court order or decree, except for conflicts, violations, breaches and
defaults which would not, individually or in the aggregate, be
materially adverse to MLCC or materially adverse to the transactions
contemplated by this Agreement.
(4) There are no actions, proceedings or investigations now
pending against MLCC or, to the knowledge of MLCC, threatened against
MLCC, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the applicable Terms
Agreement and Pooling and Servicing Agreement the Certificates, (ii)
seeking to prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated by this Agreement or the
applicable Pooling and Servicing Agreement, (iii) which might materially
and adversely affect the performance by MLCC of its obligations under,
or the validity or enforceability of, this Agreement or the Certificates
or (iv) seeking to adversely affect the federal income tax attributes of
the Certificates described in the Prospectus and the related Prospectus
Supplement.
(5) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise
stated therein, there has been no material adverse change in the
business, properties, financial condition or earnings of MLCC, whether
or not arising in the ordinary course of business.
(6) MLCC 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 conducted by it and MLCC has not received 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 any unfavorable decision, ruling or finding, would
materially and adversely affect the business, properties, financial
condition or earnings of MLCC.
(c) The Underwriter represents and warrants to, and agrees with, the
Company and MLCC as of the date hereof and as of the Representation Date that
the Underwriter has complied and will comply with all of its obligations
arising under Section 6 and, with respect to the Computational Materials and
Structural Term Sheets provided by the Underwriter to the Company pursuant to
Section 6, such Computational Materials and Structural Term Sheets are
accurate in all material respects (taking into account the assumptions
explicitly set forth in the Computational Materials and Structural Term
Sheets, except for any errors therein attributable to errors or mistakes in
the Pool Information). The Computational Materials and Structural Term
Sheets provided by the Underwriter to the Company constitute a complete set
of all Computational Materials and Structural Term Sheets required to be
filed with the Commission pursuant to the No-Action Letters.
The Company shall not be deemed to have made the representations and
warranties contained in clause (a)(19) to the extent you have received
representations and warranties from the applicable Guarantor, if any, as to
the matters covered in such clause in a certificate in form satisfactory to
your counsel and delivered to you at the applicable Closing Time.
Any certificate signed by any officer of the Company or MLCC and
delivered to you or your counsel in connection, with respect to a Series of
Certificates, with the sale of the Certificates shall be deemed a
representation and warranty by the Company or MLCC as to the matters covered
thereby.
SECTION 2. Purchase and Sale. The commitment of the Underwriter to
-----------------
purchase Certificates pursuant to the applicable 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.
On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
sell to you, and you agree to purchase from the Company, at the price for the
Certificates set forth in the applicable Terms Agreement, the Certificates.
SECTION 3. Delivery and Payment. Payment of the purchase price for,
--------------------
and delivery of, the Certificates 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 applicable Terms
Agreement (each such time and date being referred to as the "Closing Time").
Unless otherwise specified in the applicable Terms Agreement, payment shall
be made to the Company, at the option of the Company, either (a) by certified
or official bank check or checks in New York Clearing House or similar next
day funds payable to the order of the Company, or (b) in immediately
available Federal funds wired to such bank as may be designated by the
Company; provided, however, that if payment is made in immediately available
Federal funds, the Company shall simultaneously reimburse the Underwriter for
the cost to the Underwriter of such funds, based on the Underwriter's cost of
borrowing such funds for one day at their most favorable commercial paper
rate at the Closing Time. Such Certificates shall be in such denominations
and registered in such names as you may request in writing at least two
business days prior to the Closing Time. Such Certificates, 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 4. Covenants of the Company and MLCC. The Company and MLCC
---------------------------------
covenant with you as follows:
(a) Contemporaneously with the execution of the Terms Agreement,
the Company will prepare a Prospectus Supplement setting forth the
principal amount of Certificates covered thereby, the price or prices at
which the Certificates are to be purchased by the Underwriter from the
applicable Trust, either the initial public offering price or prices or
the method by which the price or prices by which the Certificates are to
be sold will be determined, the selling concession(s) and
reallowance(s), if any, any delayed delivery arrangements, and such
other information as you and the Company deem appropriate in connection
with the offering of the Certificates. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission for
filing pursuant to Rule 424 under the 1933 Act and will furnish to the
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 Certificates 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 the light of circumstances existing at the time it is deliv-
ered 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 Basic 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 Certificates for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as you
may designate, and will maintain or cause to be maintained such
qualifications in effect for as long as may be required for the
distribution of the Certificates. The Company will file or cause the
filing of such statements and reports as may be required by the laws of
each jurisdiction in which the Certificates have been qualified as above
provided.
(g) The Company will use the net proceeds received by it from the
sale of the Certificates in the manner specified in the Prospectus
Supplement under the heading "Use of Proceeds".
(h) The Company will file the Computational Materials and
Structural Term Sheets provided to it by the Underwriter under Section 6
with the Commission pursuant to a Current Report on Form 8-K not later
than 10:00 a.m. on the day the Prospectus is delivered to the
Underwriter or, in the case of any Collateral Term Sheet required to be
filed pursuant to the No-Action Letters, not later than the second
business day following the first day on which the Collateral Term Sheet
has been sent to a prospective investor; provided, however, that as a
condition to the filing of the Computational Materials and Structural
Term Sheets by the Company, the Company must receive a letter from a
firm of independent certified public accountants, which letter shall be
satisfactory in form and substance to the Company, MLCC and their
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 have determined the accuracy in all material
respects of the numerical and financial information included in the
Computational Materials and Structural Term Sheets provided by the
Underwriter to the Company for filing with the Commission.
(i) If required, the Master Servicer or Servicer will file with
the Commission a Report on Form 8-K within 15 days of the Closing Time
setting forth certain information concerning the Mortgage Loans which
was not specifically set forth in the Prospectus.
(j) Between the date of the applicable Terms Agreement and the
later of the termination of any trading restrictions or
the Closing Time with respect to the Certificates, the Company will
not, without your prior written consent, directly or indirectly,
publicly sell, or offer to sell, any mortgage pass-through certificates,
mortgage pass-through notes, collateralized mortgage obligations or
asset-backed securities or similar securities representing interests in
or secured by mortgage loans or mortgage-backed securities.
SECTION 5. Payment of Expenses. The Company and MLCC jointly will
-------------------
be obligated to pay all expenses incident to the performance of their
obligations under this Agreement and the applicable 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 Underwriters, in such quantities as you may reasonably
request, of copies of this Agreement, the applicable Terms Agreement, any
agreements among Underwriters, any Legal Investment Memorandum and any
selling agreements and Underwriters' questionnaires and powers of attorney,
(iii) the preparation, issuance and delivery of the Certificates to the
Underwriter, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Certificates under state securities
and Blue Sky laws and the determination of the eligibility of the
Certificates for investment, including filing fees, and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky Survey and Legal Investment
Memorandum, (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 Memorandum, (vii)
the printing and delivery to the Underwriter, in such quantities as you may
reasonably request, of copies of the applicable Pooling and Servicing
Agreement, (viii) the fees charged by investment rating agencies for rating
the Certificates, (ix) the fees and expenses, if any, incurred in connection
with the listing of the Certificates on any national securities exchange, (x)
any fees and expenses incurred with respect to the National Association of
Securities Dealers, Inc., including the fees and disbursements of counsel for
the Underwriter in connection therewith and (xi) the fees and expenses of the
Trustee and its counsel. Reimbursement of the expenses specified in clause
(iv) of the Section 5 may be made by the Underwriter to the Company. The
cost of the accountant's comfort letter referred to in Section 4(h) will be
an expense of the Underwriter.
If this Agreement and the applicable Terms Agreement are terminated by
the Underwriter in accordance with the provisions of Section 7 or Section
11(i), the Company and MLCC shall jointly be obligated to reimburse the
Underwriter for all out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriter.
SECTION 6. Computational Materials, Collateral Term Sheets and
---------------------------------------------------
Structural Terms Sheets. It is understood that you may prepare and
-----------------------
provide to prospective investors certain Computational Materials, Collateral
Term Sheets and Structural Term Sheets in connection with your offering of
the Certificates, subject to the following conditions:
(a) The Underwriter shall comply with all applicable laws and
regulations in connection with the use of Computational Materials,
including the No-Action letter of May 20, 1994 issued by the Commission
to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & 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. The Underwriter shall comply with all applicable
laws and regulations in connection with the use of Collateral Terms
Sheets and Structural Term Sheets, including 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) As used herein, "Computational Materials" shall have the
meaning given such term in the No-Action Letters, but shall include only
those Computational Materials that have been prepared and delivered to
prospective investors by or at the direction of the Underwriter. As
used herein, "Structural Term Sheets" and "Collateral Term Sheets" shall
have the meanings given such terms in the PSA Letter, but shall include
(i) only those Structural Term Sheets that have been prepared and
delivered to prospective investors by or at the direction of the
Underwriter and (ii) only those Collateral Term Sheets that have been
prepared by the Company or the Underwriter and delivered to prospective
investors by or at the direction of the Underwriter.
(c) The Underwriter shall provide to the Company copies (in such
format as required by the Company) of all Computational Materials and
Structural Term Sheets that are required to be filed with the Commission
pursuant to the No-Action Letters. The Underwriter may provide to the
Company copies of the foregoing in a consolidated or aggregated form,
including all information required to be filed. All Computational
Materials and Structural Term Sheets must be provided to the Company by
the Underwriter not later than 10:00 a.m. on the first business day
prior to the day on which the filing of such materials is to be made
with the Commission.
(d)(i) All Computational Materials and Structural Term Sheets
provided to prospective investors by the Underwriter that are required
to be filed pursuant to the No-Action Letters shall bear a legend on
each page substantially in the following form:
"Recipients must read the information contained in the
attached statement. Do not use or rely on this
information if you have not received and reviewed the
statement. If you have not received the statement, call
your Xxxxxxx Xxxxx account executive for another copy."
The statement referenced in the above paragraph shall be
substantially in the following form:
"The attached tables and other statistical analyses (the
"Computational Materials") are privileged and confidential and are
intended for use by the addressee only. These Computational
Materials are furnished to you solely by Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and not by the issuer
of the securities or any of its affiliates. The issuer of these
securities has not prepared or taken part in the preparation of
these materials. Neither Xxxxxxx Xxxxx, the issuer of the
securities nor any of its affiliates makes any representation as to
the accuracy or completeness of the information herein. The
information herein is preliminary, and will be superseded by the
applicable Prospectus Supplement and by any other information
subsequently filed with the Securities and Exchange Commission.
They may not be provided to any third party other than the
addressee's legal, tax, financial and/or accounting advisors for
the purposes of evaluating said material.
Numerous assumptions were used in preparing the Computational
Materials which may or may not be stated therein. As such, no
assurance can be given as to the accuracy, appropriateness or
completeness of the Computational Materials in any particular
context; or as to whether the Computational Materials and/or the
assumptions upon which they are based reflect present market
conditions or future market performance. These Computational
Materials should not be construed as either projections or
predictions or as legal, tax, financial or accounting advice.
Any yields or weighted average lives shown in the Computational
Materials are based on prepayment assumptions and actual prepayment
experience may dramatically affect such yields or weighted average
lives. In addition, it is probable that prepayments on the
underlying assets will occur at rates slower or faster than the
rates assumed in the attached Computational Materials. Furthermore
, unless otherwise provided, the Computational Materials assume
no losses on the underlying assets and no interest shortfall.
The specific characteristics of the securities may differ from
those shown in the Computational Materials due to differences
between the actual underlying assets and the hypothetical assets
used in preparing the Computational Materials. The principal amount
and structure of any security described in the Computational
Materials are subject to change prior to issuance.
Although a registration statement (including the prospectus)
relating to the securities discussed in this communication has been
filed with the Securities and Exchange Commission and is effective,
the final prospectus supplement relating to the securities
discussed in this communication has not been filed with the
Securities and Exchange Commission. This communication shall not
constitute an offer to sell or the solicitation of any offer to buy
nor shall there be any sale of the securities discussed in this
communication in any state in which such offer, solicitations or
sale would be unlawful prior to registration or qualification under
the securities laws of any such state. Prospective purchasers are
referred to the final prospectus and prospectus supplement relating
to the securities discussed in this communication for definitive
Computational Materials on any matter discussed in this
communication. The information contained in these Computational
Materials will be superseded by the description of the mortgage
loans and the other information contained in the final prospectus
supplement and prospectus relating to the securities discussed in
this communication. A final prospectus and prospectus supplement
may be obtained by contacting the Xxxxxxx Xxxxx Trading Desk at
(000) 000-0000.
Please be advised that asset-backed securities may not be
appropriate for all investors. Potential investors must be willing
to assume, among other things, market price volatility,
prepayments, yield curve and interest rate risk. Investors should
fully consider the risk of an investment in these securities.
If you have received this communication in error, please notify the
sending party immediately by telephone and return the original to
such party by mail."
(ii) In the case of Collateral Term Sheets, such legend shall
also include a statement in substantially the following form:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY
THE DESCRIPTION OF THE COLLATERAL POOL CONTAINED IN THE
PROSPECTUS SUPPLEMENT RELATING TO THE SECURITIES AND
SUPERSEDES ALL INFORMATION CONTAINED IN ANY COLLATERAL
TERM SHEETS RELATING TO THE COLLATERAL POOL PREVIOUSLY
PROVIDED BY XXXXXXX XXXXX."
Notwithstanding the foregoing legends, this subsection (d) shall be
satisfied if all Computational Materials, Structural Term Sheets and
Collateral Term Sheets bear a legend in a form or forms previously
approved in writing by the Company.
(e) The Company shall not be obligated to file any Computational
Materials or Structural Term Sheets that have been determined to contain
any material errors or omissions; provided, however, that, at the
request of the Underwriter, the Company shall file Computational
Materials or Structural Term Sheets containing material errors or
omissions if clearly marked "superseded by materials dated ____________"
and accompanied by corrected Computational Materials or Structural Term
Sheets that are marked "these materials supersede and correct the
materials dated ____________."
SECTION 7. Conditions to the Obligations of the Underwriter. The
------------------------------------------------
obligations of the Underwriter hereunder are subject to the accuracy of the
representations and warranties of the Company and MLCC herein contained, to
the performance by the Company and MLCC of their 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
Certificates shall have received the rating or ratings specified in the
applicable Terms Agreement, and (iii) there shall not have come to your
attention any facts that would cause you to believe that the Prospectus
at the time it was required to be delivered to a purchaser of the
Certificates, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at such time,
not misleading.
(b) The Company shall have delivered to you a certificate, dated
the Closing Time, signed by the president, vice president or an
assistant 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 at and as of the Closing Time
with the same effect as if made on the Closing Time, (ii) the Company
has complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Time,
(iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or, to the Company's knowledge, threatened as of the Closing
Time, and (iv) nothing has come to his/her attention that would lead
him/her to believe that the Prospectus 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.
(c) You shall have received from Xxxxx & Wood LLP, counsel for the
Company, a favorable opinion, dated the Closing Time and satisfactory in
form and substance to counsel for the Underwriter, to the effect that:
(i) 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 to own its properties and
conduct its business, as now conducted by it, and to enter into
and perform its obligations under this Agreement, the applicable
Terms Agreement and Pooling and Servicing Agreement.
(ii) To the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(iii) The Registration Statement as of its effective date and
the Prospectus as of and at the Closing Time (other than numerical,
financial and statistical data contained in the Prospectus as to
which counsel need express no opinion) complied as to form in all
material respects with the applicable requirements of the 1933 Act
and the 1933 Act Regulations.
(iv) The conditions to the use by the Company of a
registration statement on Form S-3 to Form S-ll 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.
(v) To the best of the knowledge and information 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.
(vi) This Agreement and the applicable Terms Agreement have
each been duly and validly authorized, executed and delivered by
the Company.
(vii) The applicable Pooling and Servicing Agreement has been
duly and validly authorized, executed and delivered by the Company
and constitutes a valid, legal and binding agreement of the
Company, enforceable against the Company in accordance with its
terms subject to bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights
generally and, as to enforceability, to general principles of
equity regardless of whether enforcement is sought in a proceeding
in equity or at law.
(viii) The direction by the Company to the Trustee to execute,
issue, countersign and deliver the Certificates has been duly
authorized by the Company and the Certificates, assuming that they
have been duly and validly authorized, executed, issued,
countersigned and delivered by the Trustee as specified in such
Pooling and Servicing Agreement, will be validly issued and
outstanding and entitled to the benefits of such Pooling and
Servicing Agreement.
(ix) The statements in the Prospectus Supplement under the
headings "Summary of Terms of the Offered Certificates-- Certain
Federal Income Tax Consequences", "Summary of Terms of the Offered
Certificates -- ERISA Considerations", "Certain Federal Income Tax
Consequences", "State Taxes", "ERISA Considerations" and the first
and second paragraphs under the heading "Special Considerations and
Risk Factors -Other Legal Considerations", to the extent that they
constitute matters of New York or Federal law or legal conclusions
with respect thereto, provide a fair summary of such law or
conclusions.
(x) The applicable Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended.
(xi) Neither the Company nor the Trust Fund is an "investment
company" or under the "control" of any "investment company" as such
terms are defined in the Investment Company Act of 1940, as
amended.
(xii) To the best of the knowledge and information of such
counsel, no consent, approval, authorization or order of any court
or governmental agency or body of the United States is required for
the consummation by the Company of the transactions contemplated by
the terms of this Agreement, the applicable Terms Agreement or
Pooling and Servicing Agreement, except such as may be required
under the blue sky laws of any jurisdiction in connection with the
sale of the Certificates, such other approvals as have been
obtained and except to the extent that the failure to obtain such
consents or approvals would not, individually or in the aggregate,
have a material adverse effect on the transactions contemplated by
the applicable Pooling and Servicing Agreement, this Agreement or
the applicable Terms Agreement.
(xiv) To the best of the knowledge and information of such
counsel, such counsel is not aware of any material legal or
governmental proceedings pending or threatened (A) asserting the
invalidity of the applicable Pooling and Servicing Agreement or the
Certificates, (B) seeking to prevent the issuance of the
Certificates or the consummation by the Company of any of the
transactions contemplated by this Agreement, the applicable Terms
Agreement or Pooling and Servicing Agreement, or (C) which might
materially and adversely affect the performance by the Company of
its obligations under this Agreement, the applicable Terms
Agreement or Pooling and Servicing Agreement.
(xv) The sale of the Certificates to the Underwriter pursuant
to this Agreement and the consummation of any of the transactions
contemplated by the terms of the applicable Pooling and Servicing
Agreement, the applicable Terms Agreement or this Agreement do not
conflict with or result in a breach or violation of any term or
provision of, or constitute a default under, the certificate of
incorporation or by-laws of the Company, or, to the 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, to the
knowledge of such counsel, any statute, order or regulation
applicable to the Company of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
the Company except for conflicts, violations, breaches and defaults
which would not, individually or in the aggregate, be materially
adverse to the Company or materially adverse to the transactions
contemplated by the applicable Pooling and Servicing Agreement,
this Agreement or the applicable Terms Agreement.
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 paragraph (ix) 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 the light of the circumstances under which they were made,
not misleading, except that such counsel need express no view with
respect to the financial statements, schedules and other financial and
statistical data included in or incorporated by reference into the
Registration Statement or the Prospectus.
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, the
applicable Terms Agreement and Pooling and Servicing Agreement, (b) may
assume the due authorization, execution and delivery of the instruments
and documents referred to therein by the parties thereto other than the
Company, and (c) may be qualified as an opinion only on the laws of the
State of New York, the corporation law of the State of Delaware, and the
federal law of the United States and the Employee Retirement Income
Security Act of 1974, as amended.
(d) In addition, the Underwriter shall have received from such
counsel a letter authorizing the Underwriter to rely upon any opinions
delivered by such counsel to each Rating Agency rating the Certificates
in connection with the transactions contemplated by this Agreement, the
applicable Terms Agreement and Pooling and Servicing Agreement.
(e) The Servicer shall have delivered to you a certificate, dated
the Closing Time, signed by the president, a vice president or an
assistant vice president of the Servicer to the effect that the signer
of such certificate has carefully examined this Agreement and that the
representations and warranties of the Servicer in this Agreement
are true and correct in all material respects at and as of the
Closing Time with the same effect as if made on the Closing Time.
(f) You shall have received from counsel to the Servicer (who may
be an employee of the Servicer), a favorable opinion, dated the Closing
Time and satisfactory in form and substance to counsel for the
Underwriter, to the effect that:
(i) The Servicer 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 to own its properties and
conduct its business, as presently conducted by it, and to enter
into and perform its obligations under this Agreement, the
applicable Terms Agreement and Pooling and Servicing Agreement.
(ii) This Agreement and the applicable Terms Agreement have
each been duly and validly authorized, executed and delivered by
the Servicer.
(iii) The applicable Pooling and Servicing Agreement has been
duly and validly authorized, executed and delivered by the Servicer
and constitutes a valid, legal and binding agreement of the
Servicer, enforceable against the Servicer in accordance with its
terms subject to bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights
generally and, as to enforceability, to general principles of
equity regardless of whether enforcement is sought in a proceeding
in equity or at law.
(iv) To the best of such counsel's knowledge, no consent,
approval, authorization or order of any court or governmental
agency or body of the United States is required for the
consummation by the Servicer of the transactions contemplated by
the terms of this Agreement, the applicable Terms Agreement or
Pooling and Servicing Agreement, except such as may be required
under the blue sky laws of any jurisdiction in connection with the
sale of the Certificates, such other approvals as have been
obtained and except to the extent that the failure to obtain such
consents or approvals would not, individually or in the aggregate,
have a material adverse effect on the transactions contemplated by
the applicable Pooling and Servicing Agreement, this Agreement or
the applicable Terms Agreement.
(v) The issuance and delivery of the Certificates, the
consummation by the Servicer of any other of the transactions
contemplated by the terms of the applicable Pooling and Servicing
Agreement, the applicable Terms Agreement or this Agreement,
or the fulfillment by the Servicer of the terms of such
Pooling and Servicing Agreement, the applicable Terms Agreement
or this Agreement do not conflict with or result in a
breach or violation of any term or provision of, or constitute a
default under, the certificate of incorporation or by-laws of the
Servicer, or any indenture or other agreement or instrument to
which the Servicer is a party or by which it is bound, or, to the
knowledge of such counsel, any statute, order or regulation
applicable to the Servicer of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
the Servicer and do not conflict with, result in a breach or
violation or the acceleration of or constitute a default under or
result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Servicer
pursuant to the terms of any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such
counsel to which the Servicer is a party or by which the Servicer
may be bound or to which any of the property or assets of the
Servicer may be subject except for conflicts, violations, breaches,
accelerations and defaults which would not, individually or in the
aggregate, be materially adverse to the Servicer or materially
adverse to the transactions contemplated by the applicable Pooling
and Servicing Agreement, this Agreement or the applicable Terms
Agreement.
(vi) To the best of such counsel's knowledge, such counsel is
not aware of any material legal or governmental proceedings pending
or threatened (A) asserting the invalidity of the applicable
Pooling and Servicing Agreement or the Certificates, (B) seeking to
prevent the issuance of the Certificates or the consummation by the
Servicer of any of the transactions contemplated by this Agreement,
the applicable Terms Agreement or Pooling and Servicing Agreement,
or (C) which might materially and adversely affect the performance
by the Servicer of its obligations under this Agreement, the
applicable Terms Agreement or Pooling and Servicing Agreement.
(vii) The Servicer is duly authorized under applicable
statutes, laws, regulations and court decisions to conduct in the
various jurisdictions in which it does business the business
therein currently conducted by it, except where failure to be so
permitted or failure to be so authorized will not have a material
adverse effect on the business, properties, financial condition or
earnings of the Servicer.
(viii) The Servicer is not in violation of its certificate of
incorporation or by-laws or, to the best of such counsel's
knowledge, 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 known to such counsel to which the Servicer is a
party or by which it or its properties may be bound, which default
might result in any material adverse change in the business,
properties, financial condition or earnings of the Servicer.
Such opinion (a) 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, the
applicable Terms Agreement and Pooling and Servicing Agreement, (b) may
assume the due authorization, execution and delivery of the instruments
and documents referred to therein by the parties thereto other than the
Servicer, and (c) may be qualified as an opinion only on the laws of the
State of New York and the general corporation law of the State of
Delaware.
(g) You shall have received the favorable opinion of counsel for
the Trustee (who may be an employee of the Trustee), dated the Closing
Time and satisfactory in form and substance to counsel for the
Underwriter, to the effect that:
(i) The Trustee has full power and authority to execute and
deliver the applicable Pooling and Servicing Agreement and to
perform its obligations thereunder.
(ii) To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened
against or affecting the Trustee before or by any court,
arbitrator, administrative agency or other governmental authority
which, if adversely decided, would materially and adversely affect
the ability of the Trustee to carry out the transactions
contemplated in the applicable Pooling and Servicing Agreement.
(iii) No consent, approval or authorization of, or
registration, declaration or filing with, any court or governmental
agency or body of the United States of America or any state thereof
is required for the execution, delivery or performance by the
Trustee of the applicable Pooling and Servicing Agreement.
(h) You shall have received the favorable opinion, dated the
Closing Time, of counsel for the Underwriter with respect to the
issue and sale of the Certificates, the Registration
Statement, this Agreement, the applicable Terms Agreement, the
Prospectus and such other related matters as you may require.
(i) At the Closing Time there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any material adverse
change in the business, properties, financial condition or earnings of
the Company or MLCC.
(j) At the Closing Time you shall have received from independent
certified public accountants acceptable to you, a letter, dated as of
the date of the applicable Terms Agreement and as of the applicable
Closing Time, delivered at such times, in the form heretofore agreed to.
(k) At the Closing Time you shall have received from the Trustee a
certificate signed by one or more duly authorized officers of the
Trustee, dated as of the Closing Time, as to the due acceptance of the
applicable Pooling and Servicing Agreement by the Trustee and the due
execution and delivery of the Certificates delivered by the Trustee
thereunder and such other matters as you shall reasonably request.
(l) At the Closing Time, the Certificates shall have received the
certificate rating or ratings specified in the Prospectus Supplement.
(m) At the Closing Time counsel for the Underwriter shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Certificates as herein contemplated and related proceedings,
or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions herein
contained; and all proceedings taken by the Company or MLCC in
connection with the issuance and sale of the Certificates as herein
contemplated shall be satisfactory in form and substance to the
Underwriter and counsel for the Underwriter.
(n) At the Closing Time the Company and MLCC shall have furnished
to the Underwriter such further information and documents as the
Underwriter may have reasonably requested.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the applicable Terms Agreement may be
terminated by the Underwriter by notice to the Company and MLCC at any time
at or prior to Closing Time, and such termination shall be without liability
of any party to any other party except as provided in Section 5.
SECTION 8. Indemnification. (a) As an inducement to the
---------------
Underwriter to participate in the public offering of the Certificates, the
Company and MLCC jointly and severally agree 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 (A) 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) or (B) such untrue statement or omission or
alleged untrue statement or omission relates to information in any
Computational Materials or Structural Term Sheets provided by the
Underwriter to the Company pursuant to Section 6 (except to the extent
that any untrue statements or errors contained therein are based on or
constitute Pool Information);
(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 MLCC;
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.
(b) The Underwriter agrees to indemnify and hold harmless the Company
and MLCC, their respective directors, each of the officers of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company and MLCC 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 (i)
untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company and MLCC by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) or (ii)
information in any Computational Materials or Structural Term Sheets provided
by the Underwriter to the Company pursuant to Section 6 (except to the extent
that any untrue statements or errors contained therein are based on or
constitute Pool Information). This indemnity agreement will be in addition
to any liability which such 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 any such action. In no
event shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) separate from their
own 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 9. Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity agreement provided for
in Section 8 is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and
MLCC on the one hand and the Underwriter, on the other, shall contribute to
the aggregate losses, liabilities, claims, damages and expenses, as incurred,
of the nature contemplated by said indemnity agreement incurred by the
Company, MLCC and the Underwriter, in such proportions as will reflect the
relative benefits from the sale of the Certificates received by the Company
and MLCC on the one hand and the Underwriter, on the other, taking into
account the portion of the proceeds of such sale realized by each, and the
relative benefits shall be deemed to be such that the Underwriter is
responsible for that portion of the aggregate losses, liabilities, claims,
damages and expenses represented by the percentage that the underwriting
discount on the cover of the Prospectus bears to the initial public
offering price as set forth thereon, and the Company and MLCC shall be
jointly and severally responsible for the balance; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
ll(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 and MLCC, each officer of
the Company who signed the Registration Statement, and each person, if any,
who controls the Company and MLCC within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company and MLCC.
SECTION 10. 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 or
MLCC submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the
Underwriter or controlling person thereof or by or on behalf of the Company
and MLCC, and shall survive delivery of the Certificates to the Underwriter.
SECTION 11. Termination. This Agreement may be terminated for any
-----------
reason at any time by either the Company and MLCC or you upon the giving of
thirty days' notice of such termination to the other parties hereto. You may
also terminate the applicable Terms Agreement, immediately upon notice to the
Company and MLCC, at any time at or prior to the Closing Time (i) if there
has been, since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Registration
Statement or Prospectus any change, or any development involving a
prospective change, in or affecting the condition, financial or otherwise,
earnings, affairs or business of either the Company or MLCC, whether or not
arising in the ordinary course of business, which in your judgment would
materially impair the market for, or the investment quality of, the
Certificates 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 Certificates or
enforce contracts for the sale of such Certificates, 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, the provisions of Section 5, the indemnity agreement set forth
in Section 8, the contribution provisions set forth in Section 9, and the
provisions of Sections 10 and 13 shall remain in effect.
SECTION 12. 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 you shall
be directed to you at World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, attention Syndicate Department; notices to the Company and MLCC
shall be directed to Xxxxxxx Xxxxx Credit Corporation at 0000 Xxxx Xxxx Xxxxx
Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000-0000, attention of the General Counsel.
SECTION 13. Parties. This Agreement and the applicable Terms
-------
Agreement shall each inure to the benefit of and be binding upon the
Underwriter, the Company and MLCC, and their respective successors. Nothing
expressed or mentioned in this Agreement or the applicable 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 persons and officers and directors referred to in Sections 8 and
9 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or with respect to this Agreement or the applicable
Terms Agreement or any provision herein or therein contained. This Agreement
and the applicable Terms Agreement and all conditions and provisions hereof
and thereof are intended to be for the sole and exclusive benefit of the
parties and their respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of
Certificates from the Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 14. Governing Law and Time. This Agreement and the
----------------------
applicable Terms Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to
be performed in said State. Specified times of day refer to New York City
time.
SECTION 15. Counterparts. This Agreement and the applicable 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 the Company and MLCC a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriter, the Company and MLCC in accordance
with its terms.
Very truly yours,
MLCC MORTGAGE INVESTORS, INC.
By:
---------------------------------------
Name:
Title:
XXXXXXX XXXXX CREDIT 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:
EXHIBIT A
---------
MLCC MORTGAGE INVESTORS, INC.
ML Revolving Home Equity Loan Asset Backed Certificates,
Series 199_-_
Terms Agreement
--------------------------------------------
_____, 199_
To: MLCC Mortgage Investors, Inc., as seller (the "Seller")
under the Pooling and Servicing Agreement dated as of
_______, 199_ (the "Pooling and Servicing Agreement").
Re: Underwriting Agreement, dated ________, 199_ (the
"Agreement").
Series Designation:
------------------
ML Revolving Home Equity Loan Asset Backed Certificates, Series
199_-_.
Terms of the Certificates and Underwriting Compensation:
-------------------------------------------------------
Original
Principal Pass-Through Price to
Type (1) Amount Rate Public
-------- ---------- ------------ --------
* **
___________
(1) The ________ Certificates are the Offered Certificates.
* Approximate. Subject to permitted variance of plus or minus 5%.
** The ________ Certificates are being offered by the Underwriter from time
to time in negotiated transactions or otherwise at varying prices to be
determined, in each case, at the time of sale.
Certificate Rating:
------------------
Xxxxx'x Standard &
Type of Investors Poor's
Certificate Service Ratings Group
----------- ------- -------------
Trust Fund:
----------
As described in the Prospectus Supplement.
Credit Enhancement:
------------------
Payments on the Investor Certificates will be supported by a certificate
insurance policy and by the limited subordination of the Seller Interest, as
described in the Prospectus Supplement.
Cut-off Date:
------------
_______, 199_.
Distribution Date:
-----------------
The 25th day of each month or the first Business Day thereafter
commencing in _____, 199_.
Purchase Price:
--------------
The purchase price payable by the Underwriter for the ________
Certificates is as follows:
Aggregate Original Percentage of
Type Principal Amount Principal Amount Rate
----- ---------------- ---------------- ------------
*
* The _________ 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.
* * * *
Closing Date and Location:
--------------------------
_____, 199_ at the offices of Xxxxx & Wood LLP, Xxx Xxxxx Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:_________________________________
Name:
Title:
ACCEPTED:
MLCC MORTGAGE INVESTORS, INC.
By:_________________________
Name:
Title:
