Exhibit 1.1
FORM OF UNDERWRITING AGREEMENT
$------------------
X.X. XXXXXX ACCEPTANCE CORPORATION I
Home Equity Loan Asset-Backed Certificates, Series 199_-__ Classes _________
UNDERWRITING AGREEMENT
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_____________, 19__
X.X. Xxxxxx Securities Inc.
[Co-Manager]
[As Representatives/1/ of the
Several Underwriters Listed
in Schedule I
c/o X.X. Xxxxxx Securities Inc.]
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
X.X. Xxxxxx Acceptance Corporation I, a Delaware corporation (the
"Depositor"), proposes to sell to
______________________________________________ (the "Underwriters"), [for whom
you are acting as representatives (the "Representatives"),] $____________
principal amount of Home Equity Loan Asset-Backed Certificates, Series
199_-___, Classes __________ (the " Certificates"). The Certificates will
represent beneficial interests in, among other things, a pool of mortgage
loans described in the Prospectus referred to below (the "Mortgage Loans") and
certain moneys received under the Mortgage Loans after __________, 19__ (the
"Cutoff Date"). The Certificates will be issued pursuant to the provisions of
a Pooling and Servicing Agreement to be dated as of ______________, 19__ (the
"Pooling and Servicing Agreement") between the Depositor, __________________,
as master
---------------
/1/ If JPMSI is the sole representative, global change "Representatives" for
"Representative". If JPMSI is sole manager, global change "Underwriters" for
"Underwriter" and "Representatives" for "Underwriter" and delete or change
bracketed language throughout, as appropriate.
servicer (the "Master Servicer), ________________, as special
servicer (the "Special Servicer") and
_______________________________________________, as Trustee (the "Trustee").
The Depositor has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Certificates. The
registration statement as amended at the time when it became effective, or, if
a post-effective amendment is filed with respect thereto, as amended by such
post-effective amendment at the time of its effectiveness, is referred to in
this Agreement as the "Registration Statement". The Depositor also has filed
with, or proposes to file with, the Commission pursuant to Rule 424 under the
Securities Act a prospectus supplement specifically relating to the
Certificates. The related prospectus covering the Certificates in the form
first used to confirm sales of the Certificates is hereinafter referred to as
the "Basic Prospectus", and the Basic Prospectus as supplemented by the
prospectus supplement specifically relating to the Certificates in the form
first used to confirm sales of the Certificates is hereinafter referred to as
the "Prospectus". Any reference in this Agreement to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Securities Act, as of the effective date of
the Registration Statement or the date of such preliminary prospectus or the
Prospectus, as the case may be, and any reference to "amend" "amendment" or
"supplement" with respect to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") that are deemed to be incorporated by
reference therein.
When used in this Agreement, "Basic Documents" shall mean the Pooling and
Servicing Agreement, the Certificates, the loan sale agreement dated as of
__________, 199_ (the "Loan Sale Agreement") between the Depositor and [Xxxxxx
Guaranty Trust Company of New York ("MGT")] and any other contract, agreement
or instrument which is or is to be entered into by the Depositor on the
Closing Date or otherwise in connection with any of the foregoing or this
Agreement. To the extent not defined herein, capitalized terms used herein
have the meanings assigned to such terms in the Prospectus.
The Depositor hereby agrees with the Underwriters as follows:
1. Purchase and Sale. The Depositor agrees to sell the Certificates to
the [several] Underwriters as hereinafter provided, and [each] [the]
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to
purchase[, severally and not jointly,] from the Depositor the [respective
principal amount of] Certificates [set forth opposite such Underwriter's name
in Schedule I hereto] at a price per Class equal to ______% of their principal
amount plus accrued interest, if any, on the principal amount thereof at the
applicable Pass-Through Rate set fort on Schedule I hereto from
______________, 19__ to the date of payment and delivery.
2. Offering. The Depositor understands that the Underwriters intend[s]
(i) to make a public offering of [their respective portions of] the
Certificates as soon after the parties hereto have executed and delivered this
Agreement as in the judgment of the Representatives is advisable and (ii)
initially to offer the Certificates upon the terms set forth in the
Prospectus.
3. Delivery and Payment. Payment for the Certificates shall be made by
wire transfer in immediately available funds to the account specified by the
Depositor to the Representatives no later than noon the Business Day (as
defined below) prior to the Closing Date (as defined below), at 10:00 A.M.,
New York City time on ________, 19__, or at such other time on the same or
such other date, not later than the fifth Business Day thereafter, as the
Representatives and the Depositor may agree upon in writing. The time and date
of such payment are referred to herein as the "Closing Date". As used herein,
the term "Business Day" means any day other than a day on which banks are
permitted or required to be closed in New York City.
Payment for the Certificates shall be made against delivery to the
nominee of the Depository Trust Company for the account of the Representatives
[for the respective accounts of the several Underwriters] of one or more
global notes (the "Global Note") representing the Certificates, with any
transfer taxes payable in connection with the transfer to the Underwriters of
the Certificates duly paid by the Depositor. The Global Note will be made
available for inspection by the Representatives at the office of X.X. Xxxxxx
Securities Inc. at the address set forth above not later than 1:00 P.M., New
York City time, on the Business Day prior to the Closing Date.
4. Representations and Warranties. The Depositor represents and warrants
to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424
under the Securities Act, complied when so filed in all material respects
with the Securities Act, and did not contain an untrue statement of a
material fact or omit to state a 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; provided that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
relating to [any] [the] Underwriter furnished to the Depositor in writing
by [such] [the] Underwriter [through the Representatives] expressly for
use therein;
(b) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Depositor, threatened by the Commission; and the Registration
Statement and Prospectus (as amended or supplemented if the Depositor
shall have furnished any amendments or supplements thereto) comply, or
will comply, as the case may be, in all material respects with the
Securities Act and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as of
the date of the Prospectus and any amendment or supplement thereto,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus, as amended or
supplemented, if applicable, at the Closing Date will not contain 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; except that the
foregoing representations and warranties shall not apply to statements or
omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to [any] [the]
Underwriter furnished to the Depositor in writing by [such] [the]
Underwriter [through the Representatives] expressly for use therein;
(c) the documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act,
and will not contain an 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;
(d) the Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the state of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a material
adverse effect on the transactions contemplated herein or in the Basic
Documents;
(e) this Agreement has been duly authorized, executed and delivered
by the Depositor;
(f) the Certificates have been duly and validly authorized and, when
such Certificates are duly and validly executed and authenticated by the
Trustee and delivered in accordance with the Pooling and Servicing
Agreement and delivered and paid for pursuant to this Agreement will be
validly issued and outstanding and entitled to the benefits and security
afforded by the Pooling and Servicing Agreement; each of the Basic
Documents has been duly authorized and, when executed and delivered by
the Depositor and, in the case of the Basic Documents, the other parties
thereto, each of the Basic Documents will constitute a legal, valid and
binding obligation of the Depositor, enforceable against the Depositor in
accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of creditors
rights generally and to general equitable principles; and the
Certificates and the Basic Documents each will conform to the
descriptions thereof in the Prospectus;
(g) the Depositor is not, nor with the giving of notice or lapse of
time or both would be, in violation of or in default under, its
Certificate of Incorporation or By-Laws or any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Depositor is a party or by which it or any of its properties is bound,
except for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents; the issue and sale of the
Certificates and the performance by the Depositor of all of the
provisions of its obligations under the Certificates, the Basic Documents
and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party or by which the Depositor is
bound or to which any of the property or assets of the Depositor is
subject, nor will any such action result in any violation of the
provisions of the Certificate of Incorporation or the By-Laws of the
Depositor or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Depositor, or any of its properties; and no
consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Certificates or the consummation
by the Depositor of the transactions contemplated by this Agreement or
the Basic Documents, except such consents, approvals, authorizations,
orders, licenses, registrations or qualifications as have been obtained
under the Securities Act, and as may be required under state securities
or Blue Sky Laws in connection with the purchase and distribution of the
Certificates by the Underwriters;
(h) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Depositor, threatened
against or affecting the Depositor or its properties or, to which the
Depositor is or may be a party or to which the Depositor or any property
of the Depositor is or may be the subject, (i) asserting the invalidity
of this Agreement or of any of the Basic Documents, (ii) seeking to
prevent the issuance of the Certificates or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic
Documents, (iii) that may adversely affect the federal or state income,
excise, franchise or similar tax attributes of the Certificates, (iv)
that could materially and adversely affect the Depositor's performance of
its obligations under, or the validity or enforceability of, this
Agreement or any of the Basic Documents or (v) which could individually
or in the aggregate reasonably be expected to have a material adverse
effect on the interests of the holders of the Certificates or the
marketability of the Certificates; and there are no statutes,
regulations, contracts or other documents that are required to be filed
as an exhibit to the Registration Statement or required to be described
in the Registration Statement or the Prospectus which are not filed or
described as required;
(i) the computer tape with respect to the Mortgage Loans to be
deposited in the Trust Fund created as of the Cutoff Date and made
available to the Underwriters by the Depositor was complete and accurate
in all material respects as of the date hereof; the Depositor has good
and marketable title to the Mortgage Loans free and clear of all liens,
encumbrances and defects, except such as are described or referred to in
the Prospectus, and by assignment and delivery of each of the Mortgage
Loans to the Trustee as of the Closing Date, the Depositor will transfer
title in the Mortgage Loans to the Trust Fund, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, change or
encumbrance;
(j) the representations and warranties of the Depositor contained in
the Basic Documents are true and correct in all material respects; and
(k) [Ernst & Young LLP] are independent public accountants with
respect to the Depositor within the meanings of the Securities Act.
5. Covenants and Agreements. The Depositor covenants and agrees with
[each of] the [several] Underwriters as follows:
(a) to file the final Prospectus with the Commission within the time
periods specified by Rule 424(b) under the Securities Act, and to furnish
copies of the Prospectus to the Underwriters in New York City prior to
10:00 a.m., New York City time, on the Business Day next succeeding the
date of this Agreement in such quantities as the Representatives may
reasonably request;
(b) to deliver, at the expense of the Depositor, to the
Representatives, /2/ signed copies of the Registration Statement (as
originally filed) and each amendment thereto, in each case including
exhibits and documents incorporated by reference therein, and to each
other Underwriter a conformed copy of the Registration Statement (as
originally filed) and each amendment thereto, in each case without
exhibits but including the documents incorporated by reference therein
and, during the period mentioned in paragraph (e) below, to [each of] the
Underwriters as many copies of the Prospectus
---------------
/2/ One for each Representative and one for Underwriters' counsel.
(including all amendments and supplements thereto and documents
incorporated by reference therein) as the Representatives may reasonably
request;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the
Registration Statement becomes effective, to furnish to the
Representatives a copy of the proposed amendment or supplement for review
and not to file any such proposed amendment or supplement to which the
Representatives reasonably object[s];
(d) to advise the Representatives promptly, and to confirm such
advice in writing, (i) when any amendment to the Registration Statement
has been filed or becomes effective, (ii) when any supplement to the
Prospectus or any amendment to the Prospectus has been filed and to
furnish the Representatives with copies thereof, (iii) of any request by
the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus or
the Prospectus or the initiation or threatening of any proceeding for
that purpose, (v) of the occurrence of any event, within the period
referenced in paragraph (e) below, as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, and (vi) of the
receipt by the Depositor of any notification with respect to any
suspension of the qualification of the Certificates for offer and sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of any
such stop order, or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus, or of any order suspending and
such qualification of the Certificates, or notification of any such order
thereof and, if issued, to obtain as soon as possible the withdrawal
thereof;
(e) if, during such period of time after the first date of the
public offering of the Certificates as in the opinion of counsel for the
Underwriters a prospectus relating to the Certificates is required by law
to be delivered in connection with sales by [an] [the] Underwriter or a
dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend
or supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at the expense of the Depositor, to the Underwriters and to the
dealers (whose names and addresses the Representatives will furnish to
the Depositor) to which Certificates may have been sold by the
Representatives [on behalf of the Underwriters] and to any other dealers
upon request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(f) to endeavor to qualify the Certificates for offer and sale under
the Certificates or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution
of the Certificates; provided that the Depositor shall not be required to
file a general consent to service of process in any jurisdiction;
(g) to make generally available to the holders of the Certificates
and to the Representatives as soon as practicable an earnings statement
covering a period of at least twelve months beginning with the first
fiscal quarter of the Trust Fund occurring after the effective date of
the Registration Statement, which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder;
(h) so long as the Certificates are outstanding, to furnish to the
Representatives (i) copies of each certificate, the annual statements of
compliance and the annual independent certified public accountant's
servicing reports furnished to the Trustee pursuant to the Pooling and
Servicing Agreement by first class mail as soon as practicable after such
statements and reports are furnished to the Trustee, (ii) copies of each
amendment to any of the Basic Documents, (iii) copies of all reports or
other communications (financial or other) furnished to holders of the
Certificates, and copies of any reports and financial statements
furnished to or filed with the Commission, any governmental or regulatory
authority or any national securities exchange, and (iv) from time to time
such other information concerning the Trust Fund or the Depositor as the
Representatives may reasonably request;
(i) to the extent, if any, that the ratings provided with respect to
the Certificates by the Rating Agencies are conditional upon the
furnishing of documents or the taking of any other action by the
Depositor, the Depositor shall use its best efforts to furnish such
documents and take any other such action; and
(j) to use the net proceeds received by the Depositor from the sale
of the Certificates pursuant to this Agreement in the manner specified in
the Prospectus under the caption "Use of Proceeds".
6. Conditions to the Obligations of the Underwriters. The [several]
obligations of the Underwriters hereunder are subject to the performance by
the Depositor of its obligations hereunder and to the following additional
conditions:
(a) if a post-effective amendment is required to be filed under the
Securities Act, such post-effective amendment shall have become
effective, not later than 5:00 P.M., New York City time, on the date
hereof; and no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; the Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the
Securities Act and in accordance with Section 5(a) hereof; and all
requests for additional information shall have been complied with to the
satisfaction of the Representatives;
(b) the representations and warranties of the Depositor contained
herein are true and correct on and as of the Closing Date as if made on
and as of the Closing Date and the representations and warranties of the
Depositor and the Servicers in the Pooling and Servicing Agreement will
be true and correct on the Closing Date; and the Depositor shall have
complied with all agreements and all conditions on its part to be
performed or satisfied hereunder and under the Basic Documents at or
prior to the Closing Date;
(c) the Representatives shall have received on and as of the Closing
Date a certificate of an executive officer of the Depositor satisfactory
to the Representatives to the effect set forth in subsections (a) and (b)
of this Section;
(d) Xxxxx & Xxxx, counsel for the Depositor, shall have furnished to
the Representatives their written opinion, dated the Closing Date, in
form and substance satisfactory to the Representatives, to the effect
that:/3/
(i) the Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus;
(ii) the Depositor has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of the State of New York, which the Depositor has
advised such counsel in writing is the only jurisdiction in which it
owns or leases properties, or conducts any material business, so as
to require such qualification;
[(iii) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental investigations,
actions, suits or proceedings pending or, to the best of such
counsel's knowledge, threatened against or affecting the Depositor
or any of its properties, or to which the Depositor is or may be a
party or to which any property of the Depositor is or may be the
subject (i) that are required to be disclosed in the Registration
Statement or the Prospectus, (ii) asserting the invalidity of this
Agreement or of any of the Basic Documents, (iii)
---------------
/3/ The bracketed sections are from the JPMSI form of UA but were not included
in the B&W opinion in the C2 UA. Can B&W give these going forward? Let's
discuss.
seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this
Agreement or any of the Basic Documents, (iv) that may adversely
affect the federal or state income, excise, franchise or similar
tax attributes of the Certificates, (v) that could materially
and adversely affect the Seller's obligations under this Agreement
or any of the Basic Documents or (vi) which, if determined
adversely to the Depositor, could individually or in the aggregate
reasonably be expected to have a material adverse effect on the
general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the
Depositor taken as a whole or that would reasonably be expected
to materially adversely affect the interests of the holders of
the Certificates;]
(iv) such counsel does not know of any statutes, regulations,
contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or required to be filed
as an exhibit to the Registration Statement that are not described
or filed as required;
(v) this Agreement has been duly authorized, executed and
delivered by the Depositor;
(vi) the Certificates have been duly and validly authorized
and, when such Certificates are duly and validly executed and
authenticated by the Trustee and delivered in accordance with the
Pooling and Servicing Agreement and delivered and paid for pursuant
to this Agreement will be validly issued and outstanding and
entitled to the benefits and security afforded by the Pooling and
Servicing Agreement;
(vii) each of the Basic Documents has been duly authorized,
executed and delivered by the Depositor and constitutes a valid and
binding obligation of the Depositor enforceable against the
Depositor in accordance with its terms, subject as to enforceability
to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws
affecting the enforcement of creditors rights generally and to
general equitable principles;
(viii) [the Depositor is not, nor with the giving of notice or
lapse of time or both would be, in violation of or in default under,
its Certificate of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Depositor is a party
or by which it or any of its properties is bound, except for
violations and defaults which individually and in the aggregate are
not material to the Depositor taken as a whole or to the holders of
the Certificates;] the issue and sale of the Certificates and the
execution, delivery and performance by the Depositor of the
Certificates, the Basic Documents and this Agreement and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Depositor is a party
or by which the Depositor is bound or to which any of the property
or assets of the Depositor is subject, nor will any such action
result in any violation of the provisions of the Certificate of
Incorporation, or the By-Laws of the Depositor or any applicable law
or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Depositor,
or any of its properties;
(ix) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the
Certificates or the consummation of the other transactions
contemplated by this Agreement or the Basic Documents, except such
consents, approvals, authorizations, orders, licenses, registrations
or qualifications as have been obtained under the Securities Act and
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Certificates by
the Underwriter;
(x) the statements in the Prospectus under "Description of the
Pooling and Servicing Agreement" and "Description of Certificates"
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents or proceedings; the statements in the
Registration Statement and the Prospectus under the headings
"Certain Federal Income Tax Consequences, "State Tax
Considerations", "ERISA Considerations", ["Certain Legal Aspects of
the Mortgage Loans and the Leases"] and "Legal Investment", to the
extent they constitute descriptions of matters of law or legal
conclusions with respect thereto, have been prepared or reviewed by
such counsel and are correct in all material respects;
(xi) such counsel is of the opinion that the Registration
Statement and the Prospectus and any amendments and supplements
thereto (other than any accounting, statistical or financial data
included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Securities Act; and such counsel believes that (other than the
accounting, statistical or financial data included therein, as to
which such counsel need express no belief) the Registration
Statement and the prospectus included therein at the time the
Registration Statement became effective did not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and that the Prospectus, as amended or
supplemented, if applicable, 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;
[(xii) the documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by
the Depositor prior to the Closing Date (other than any accounting,
statistical or financial data included therein, as to which such
counsel need express no opinion), when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when such documents were so filed, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents
were so filed, not misleading;]
(xiii) the Registration Statement has become effective under
the Securities Act and, to such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Securities Act and no proceedings for that purpose
have been instituted or threatened by the commissioner.
(xiv) the Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the
Trust Fund is not required to be registered as an "investment
company" under the Investment Company Act of 1940, as amended; and
(xv) assuming compliance with all of the provisions of the
Pooling and Servicing Agreement, under existing law, (a) the Trust
Fund will be treated as ____ separate "real estate mortgage
investment conduits" (each a "REMIC") as defined by Section 860D of
the Internal Revenue Code of 1986 (the "Code"), (b) the Class ___
Certificates will represent beneficial interests in regular
interests in the REMIC ____ as the term "regular interest" is
defined in the Code, and (c) the Class R- __ Certificates will be
treated as the sole class of "residual interests" in each REMIC, as
the term "residual interest" is defined in the Code. However,
continuation of the status of the Trust Fund as a REMIC may entail
compliance with statutory changes in the future and with regulations
not yet issued.
(e) on the date hereof and also on the Closing Date, [Ernst & Young
LLP] shall have furnished to you letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you;
(f) the Representatives shall have received on and as of the Closing
Date an opinion of Xxxxx & Xxxx, counsel to the Underwriters, with
respect to the validity of the Pooling and Servicing Agreement and the
Certificates, the Registration Statement, the Prospectus and other
related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(g) [Insert A & K's opinion, Trustee's counsel opinion, Master
Servicer's counsel opinion, Special Servicer's counsel opinion, MGT's
counsel opinion, MGT closing certificate, Master Servicer, Primary
Servicer and Special Servicer closing certificates, all from C2
underwriting agreement.]
(h) the Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in
connection with the transaction described herein which is not otherwise
described in this Agreement allowing the Representative to rely on such
opinion as if it were addressed to the Representative;
(i) the Representative shall have received copies of letters from
[Standard & Poor's Rating Services and Fitch Investors Service, L.P.]
(the "Rating Agencies") stating that the Certificates shall have been
rated as set forth on Schedule I hereto by the Rating Agencies; and
(j) on or prior to the Closing Date the Depositor shall have
furnished to the Representatives such further certificates and documents
as the Representatives shall reasonably request.
7. Indemnification and Contribution. (a) The Depositor [and X.X. Xxxxxx
Securities Holdings Inc. ("JPMSH")]/4/ agree[s] to [jointly and severally]
indemnify and hold harmless [each] [the] Underwriter and each person, if any,
who controls [any] [the] Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without
limitation, the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Depositor shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or 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 are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information relating to [any] [the] Underwriter furnished to the
Depositor in writing by [such] [the] Underwriter [through the Representatives]
expressly for use therein;
(b) [Each] [the] Underwriter agrees [, severally and not jointly,]
to indemnify and hold harmless the Depositor, its directors, its officers
who sign the Registration Statement [, JPMSH ]/5/ and each person who
controls the Depositor within the meaning of
---------------
/4/ If there are co-managers, insert bracketed language.
/5/ Insert bracketed language for JPMSH only to the extent inserted in previous
paragraph.
Section 15 of the Securities Act and Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Depositor
[and JPMSH] to [each] [the] Underwriter, but only with reference to
information relating to [such] [the] Underwriter furnished to the
Depositor in writing by [such] [the] Underwriter [through the
Representatives] expressly for use in the Registration Statement,
the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant
to Subsections (a) or (b) above, such person (the "Indemnified Person")
shall promptly notify the person against whom such indemnity may be
sought (the "Indemnifying Person") in writing, and the Indemnifying
Person, upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate
in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person
shall have mutually agreed to the contrary, (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person or (iii) the named parties in any
such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person 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 Person shall not, in connection with any proceeding or
related proceeding 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 Indemnified Persons, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm for the
Underwriters and such control persons of the Underwriters shall be
designated in writing by X.X. Xxxxxx Securities Inc. and any such
separate firm for the Depositor, its directors, its officers who sign the
Registration Statement[, JPMSH]/6/ and such control persons of the
Depositor shall be designated in writing by the Depositor. The
Indemnifying Person 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 Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by
the third sentence of this subsection (c), the Indemnifying Person agrees
that it shall be liable for any settlement of any proceeding
---------------
/6/ Insert bracketed language only to the extent inserted in previous paragraph.
effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior
to the date of such settlement. No Indemnifying Person shall, without
the prior written consent of the Indemnified Person, effect any settlement
of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person
from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in subsections (a) or (b)
above is unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each
Indemnifying Person under such subsection, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or
payable by such Indemnified Person 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 Depositor on the one hand
and the Underwriters on the other hand from the offering of the
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 Depositor on the one hand and the
Underwriters on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits
received by the Depositor on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by the
Depositor and the total underwriting discounts and the commissions
received by the Underwriters bear to the aggregate public offering price
of the Certificates. The relative fault of the Depositor on the one hand
and the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Depositor or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The Depositor 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 that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in this subsection (d)
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall [an] [the] Underwriter be
required to contribute any amount in excess of the amount by which the total
price at which the Certificates underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. [The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of Certificates set forth opposite their names in
Schedule I hereto, and not joint.]
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.
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Depositor set
forth 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 [any] [the] Underwriter or any
person controlling [any] [the] Underwriter or by or on behalf of the
Depositor, its officers or directors or any other person controlling the
Depositor and (iii) acceptance of and payment for any of the
Certificates.
8. Termination. Notwithstanding anything herein contained, this Agreement
may be terminated in the absolute discretion of the Representatives, by notice
given to the Depositor, if 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 Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iii) 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 Representatives, is
material and adverse and which, in the judgment of the Representatives, makes
it impracticable to market the Certificates on the terms and in the manner
contemplated in the Prospectus.
9. Effectiveness of Agreement[; Default of Underwriters]. This Agreement
shall become effective upon execution and delivery hereof by the parties
hereto.
[If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Certificates which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Certificates
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of
the Certificates to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of
Certificates set forth opposite their respective names in Schedule I bears to
the aggregate principal amount of Certificates set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Certificates which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the principal amount of
Certificates that any Underwriter has agreed to purchase pursuant to Section 1
be increased pursuant to this Section 9 by an amount in excess of one-ninth of
such principal amount of Certificates without the written consent of such
Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail
or refuse to purchase Certificates which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Certificates
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Certificates to be purchased on such date, and
arrangements satisfactory to the Representatives and the Depositor for the
purchase of such Certificates are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Depositor. In any such case either you or
the Depositor shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in any other documents
or arrangements may be effected. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.]
10. Payment of Expenses. (a) JPMSI will pay all costs and expenses of the
Depositor in connection with the transactions herein contemplated, including,
but not limited to: (i) the costs and expenses of the Depositor in connection
with the purchase of the Mortgage Collateral; (ii) the fees and disbursements
of counsel to the Depositor; (iii) the costs and expenses of reproducing and
delivering the Pooling and Servicing Agreement and printing (or otherwise
reproducing) and delivering the Certificates; (iv) the fees, costs and
expenses of the Trustee and its counsel; (v) all accounting fees and
disbursements; (vi) the costs and expenses in connection with the
qualification or exemption of the Certificates under state securities or Blue
Sky laws, including filing fees and reasonable fees and disbursements of
counsel in connection therewith; (vii) the costs and expenses in connection
with any determination of the eligibility of the Certificates for investment
by institutional investors in any jurisdiction and the preparation of any
Legal Investment Survey, including reasonable fees and disbursements of
counsel in connection therewith; (viii) the costs and expenses in connection
with printing (or otherwise reproducing ) and delivering the Registration
Statement and Prospectus and the reproducing and delivery of this Agreement
and the furnishing to the Underwriters of such copies of the Registration
Statement, Prospectus and this Agreement as the Underwriters may reasonably
request; and (ix) the fees of the rating agency or agencies requested to rate
the Certificates. Except as provided in the following paragraph (b), each
Underwriter shall be responsible for paying all costs and expenses incurred by
it in connection with its purchase and sale of Certificates including, but not
limited to, the fees and disbursements of its counsel.
(b) If this Agreement shall be terminated by the Underwriters[, or
any of them,] because of any failure or refusal on the part of the
Depositor to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Depositor shall be unable to
perform its obligations under this Agreement or any condition of the
[Underwriters'] [Underwriter's] obligations cannot be fulfilled, X.X.
Xxxxxx Securities Inc. agrees to 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 expenses of their counsel) reasonably incurred by [such] [the]
Underwriters in connection with this Agreement or the offering
contemplated hereunder.
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the Depositor, the Underwriters, any controlling persons referred
to herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
other person, firm or corporation any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
No purchaser of Certificates from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
12. [Actions by Representative;] Notices. [Any action by the Underwriters
hereunder may be taken by [the Representatives jointly or by/7/] X.X. Xxxxxx
Securities Inc. [alone/8/] on behalf of the Underwriters, and any such action
taken by [the Representatives jointly or by/9/] X.X. Xxxxxx Securities Inc.
[alone/10/] shall be binding upon the Underwriters.] All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given to [the Representatives c/o] X.X.
Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000
(Facsimile No.: (000) 000-0000); Attention: Syndicate Desk. Notices to the
Depositor shall be given to it at X.X. Xxxxxx Commercial Mortgage Finance
Corp, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, (Facsimile No.: (212)
648-5138); Attention: Xxxxxxx X. Xxxxxxx, President.
13. Counterparts; Applicable Law. This Agreement may be signed in
counterparts, each of which shall be an original and all of which together
shall constitute one and the same instrument. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
giving effect to the conflicts of laws provisions thereof.
---------------
/7/Delete if JPMS is the sole representative.
/8/Delete if JPMS is the sole representative.
/9/Delete if JPMS is the sole representative.
/10/Delete if JPMS is the sole representative.
If the foregoing is in accordance with your understanding, please sign
and return the enclosed counterparts hereof.
Very truly yours,
X.X. XXXXXX ACCEPTANCE CORPORATION I
By:_________________________________
Name:
Title:
[X.X. XXXXXX SECURITIES
HOLDINGS INC.
By:_________________________________
Name:
Title: ]
Accepted: __________, 199_
X.X. Xxxxxx Securities Inc.
[Co-Manager/11/]
[Acting severally on behalf
of themselves/12/ and the
several Underwriters listed
in Schedule I hereto.]
[By: X.X. Xxxxxx Securities Inc./13/]
[Acting on behalf of itself and the
several Underwriters listed in
Schedule I hereto.]
By:___________________________
Title:
---------------
/11/Delete if JPMSI is sole Representative.
/12/Delete if JPMSI is sole Representative and change "themselves" to "itself".
/13/Delete if JPMSI is sole Representative and change "themselves" to "itself".
SCHEDULE I
----------
[INSERT FORM OF SCHEDULE I
FROM C2 UNDERWRITING AGREEMENT]
PRINCIPAL AMOUNT OF
CERTIFICATES TO BE PURCHASED
----------------------------
Underwriter
-----------
X.X. Xxxxxx Securities Inc..............
[Co-Manager]............................
Total..........................
