MID-STATE TRUST 199 -
$ [________] [ ]% Asset Backed Notes, Class A-1
$ [________] [ ]% Asset Backed Notes, Class A-2
$ [________] [ ]% Asset Backed Notes, Class A-3
$ [________] [ ]% Asset Backed Notes, Class A-4
UNDERWRITING AGREEMENT
_________ __, 199
[Underwriter],
[Address]
Ladies and Gentlemen:
Mid-State Homes, Inc. (the "Company"), a Florida corporation and an
indirect, wholly-owned subsidiary of Xxxxxx Industries, Inc. ("Xxxxxx
Industries"), has entered into a trust agreement dated as of _________, 199_
(the "Trust Agreement") with ______________, a ______________ (not in its
individual capacity, but solely as trustee under the Trust Agreement,
together with its permitted successors and assigns, the "Owner Trustee")
creating Mid-State Trust 199 - , a business trust established under the laws
of the state of Delaware (the "Trust" or the "Issuer"). The Issuer will act
at all times through the Owner Trustee.
The Company proposes to direct the Owner Trustee to issue the [ ]%
Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), [ ]% Asset Backed
Notes, Class A-2 (the "Class A-2 Notes"), [ ]% Asset Backed Notes, Class A-3
(the "Class A-3 Notes") and [ ]% Asset Backed Notes, Class A-4 (the "Class
A-4 Notes"), each in the aggregate principal amount set forth above (the
Class A-1 Notes, Class A-2 Notes, Class A-3 Notes and Class A-4 Notes
collectively referred to as the "Notes"). The Notes shall be issued under an
indenture (the "Indenture"), dated as of _________, 199_ between the Owner
Trustee, not in its individual capacity, but solely as trustee under the
Trust Agreement, and ________________ (the "Trustee"). Capitalized terms used
but not defined herein shall have the meanings given to them in the
Indenture. The Company also proposes to direct the Owner Trustee to cause the
Notes to be sold to you (the "Underwriter" or "you") with respect to the
public offering by you of the Notes.
The Notes are secured by (i) certain building and installment sale
contracts, promissory notes, related mortgages and other security instruments
("Accounts") owned directly or indirectly by the Company and having an
aggregate outstanding Economic Balance of $[_________] as of _________, 199_
(the "Cut-Off Date"), (ii) the Collection Account established under the
Indenture and (iii) the Trust's rights under the Servicing Agreement (the
"Servicing Agreement") dated as of __________, 199_ among the Issuer, the
Trustee and the
Company (in its capacity as Servicer under the Servicing Agreement, together
with its successors and assigns, the "Servicer"). The Company will sell the
Accounts to the Issuer pursuant to the Purchase and Sale Agreement dated as
of the Closing Date (the "Purchase Agreement").
This Agreement shall confirm the arrangements with respect to your
purchase of the Notes.
SECTION 1. Representations and Warranties. (a) The Company
represents and warrants to you as follows:
(i) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement on such Form (file number 333-[______]), which has become
effective, for the registration under the Act of the Notes. Such
registration statement, as amended to the date of this Agreement, meets
the requirements set forth in Rule 415(a)(1) under the Act and complies
in all other material respects with said Rule. The Company proposes to
file with the Commission pursuant to Rule 424 under the Act a supplement
to the form of prospectus included in such registration statement
relating to the Notes and the plan of distribution thereof and has
previously advised the Underwriter of all further information with
respect to the Company and the Notes to be set forth therein. Such
registration statement, including the exhibits thereto, as amended to
the date of this Agreement, is hereinafter called the "Registration
Statement;" such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic Prospectus;" and
such supplemented form of prospectus, in the form in which it shall be
filed with the Commission pursuant to Rule 424 (including the Basic
Prospectus as so supplemented) is hereinafter called the "Final
Prospectus." Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 hereinafter is called the
"Preliminary Final Prospectus." Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") other than any information contained in any Current
Report (as defined in Section 3(ii) below) filed pursuant to Section
3(ii) hereof or pursuant to any other underwriting agreement entered
into by the Company, on or before the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be; and any reference herein to
the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the date
of this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, and deemed to be incorporated therein by reference other than any
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information contained in any Current Report filed pursuant to Section
3(ii) hereof or pursuant to any other underwriting agreement entered
into by the Company.
(ii) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424 under the Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when any
supplement to the Final Prospectus is filed with the Commission and at
the Closing Date (as hereinafter defined), (i) the Registration
Statement, as amended as of any such time, and the Final Prospectus, as
amended or supplemented as of any such time, will comply in all material
respects with the Exchange Act and the respective rules thereunder, (ii)
the Registration Statement, as amended as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the Company
makes no representation or warranty as to (A) the information contained
in or omitted from the Registration Statement or the Final Prospectus or
any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of the Underwriter specifically for use in connection with the
preparation of the Registration Statement and the Final Prospectus or
(B) the Current Report (as defined in Section 3(ii) below), or in any
amendment thereof or supplement thereto, incorporated by reference in
the Registration Statement or the Final Prospectus (or any amendment
thereof or supplement thereto).
(iii) As of the date hereof, the Indenture was or will be duly
qualified under, and conformed in all material respects with, the
requirements of the 1939 Act and the rules and regulations thereunder
(the "1939 Act Regulations"), and on the Closing Date, the Indenture
will be so qualified and in conformity.
(iv) Price Waterhouse LLP are independent public accountants with
respect to the Company as required by the Act.
(v) The Company has been duly incorporated and is validly existing
as a corporation and is in good standing under the laws of the
jurisdiction of its incorporation, with corporate power to own, lease
and operate its property; and the Company is qualified to do business
and is in good standing in each jurisdiction to the extent necessary to
permit the servicing of each Account in accordance with the terms of the
Servicing Agreement.
(vi) The issuance and sale of the Notes to the Underwriter, the
execution, delivery and performance by the Company of this Agreement,
the Servicing
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Agreement, the Purchase Agreement, the Trust Agreement or any other
agreement or instrument contemplated therein or herein and the
assignment to the Trust of the Accounts and the authorization by the
Company of the execution, delivery and performance by the Owner Trustee
of the Indenture and the issuance of the Notes are within the corporate
power and authority of the Company and have been duly authorized by all
necessary corporate action on the part of the Company; and neither the
issuance and sale of the Notes to the Underwriter nor the execution,
delivery and performance of this Agreement, the Servicing Agreement,
the Purchase Agreement, the Trust Agreement or any other agreement or
instrument contemplated herein or therein nor the consummation of the
transactions contemplated herein or therein nor compliance by the
Company with the provisions hereof or thereof, nor the assignment to
the Owner Trustee of the Accounts, nor the execution, delivery and
performance by the Owner Trustee of the Indenture and the issuance of
the Notes, nor compliance by the Owner Trustee with the provisions
thereof conflicts with or results in a material breach or violation of
any of the terms or provisions of or (with or without notice, lapse of
time or both) constitutes a default under any statute, indenture,
mortgage, deed of trust, note or other agreement or instrument to which
the Company is a party or by which it or any of its property is bound,
the Company's certificate of incorporation or by-laws or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties or results in
the creation or imposition of any lien, charge or encumbrance upon any
of its property pursuant to the terms or provisions of any statute,
indenture, mortgage, deed of trust, note or other agreement or
instrument, except for the liens created or contemplated by the
Indenture.
(vii) This Agreement has been and on or prior to the Closing Date,
the Servicing Agreement, the Trust Agreement, and the Purchase Agreement
will have each been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery by the
other parties hereto and thereto, this Agreement, the Servicing
Agreement, the Trust Agreement, and the Purchase Agreement each
constitutes or will constitute a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with their
respective terms, except as enforcement may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(viii) The Notes and the Indenture will conform in all material
respects to all statements relating thereto in the related Final
Prospectus, and are duly and validly authorized and, when the related
Notes have been executed, authenticated and delivered in accordance with
the Indenture, and delivered to and paid for by the Underwriter as
provided herein, the related Notes will be entitled to the benefits and
security afforded by the Indenture, and will constitute legal, valid and
binding obligations of the Issuer enforceable in accordance with their
terms and the terms of the Indenture.
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(ix) The Company is not in violation of its certificate of
incorporation or any applicable administrative or court order or decree.
(x) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company, which is required to be disclosed in the Registration Statement
(other than as disclosed therein); all pending legal or governmental
proceedings to which the Company is a party or of which any of their
properties or assets are the subject which are not described in the
Registration Statement including ordinary routine litigation incidental
to the business, are, considered in the aggregate, not material;
(xi) The Company possesses such 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 to perform the servicing obligations under the
Servicing Agreement, and the Company 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 condition, financial
or otherwise, or the earnings, business affairs or business prospects of
the Company.
(xii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Notes, or the consummation by the
Company of the other transactions contemplated by this Agreement, the
Indenture, the Trust Agreement or any other agreement or instrument
contemplated therein or herein, except filings required to perfect the
liens of the Indenture and except such as may be required under the Act
or state securities laws and such as have been obtained and are in
effect.
(xiii) Upon the payment by the Issuer for the Accounts in
accordance with the Purchase Agreement, the Company will have duly and
validly sold and assigned all right, title and interest in the Accounts
to the Issuer; the Issuer will have good and valid title to the Accounts
free and clear of all liens, encumbrances, and other interests of others
except to the extent permitted in the Indenture; and the Company will be
the sole beneficial owner of the Issuer.
(xiv) The Trust Agreement is effective to establish the Trust under
and pursuant to the laws of the State of Delaware.
(xv) The Company and the Issuer are not, and will not be required
as a result of the offer and sale of the Notes to register as, an
"investment company" under the Investment Company Act of 1940, as
amended (the "1940 Act") and neither the Company nor the Issuer is
"controlled" by an "investment company" as defined in the 1940 Act.
5
(xvi) The Accounts conform in all material respects to the
statements and description thereof contained in the Final Prospectus.
(b) Any certificate signed by any officer of the Company and
delivered to you or your counsel shall be deemed a representation and
warranty by the Company as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriter: Closing. (a) On the
basis of the representations and warranties herein contained and subject to
the terms and conditions herein set forth, the Company agrees to direct the
Owner Trustee to sell on behalf of the Issuer to the Underwriter, and the
Underwriter agrees to purchase from the Owner Trustee acting on behalf of the
respective Issuer, the principal amounts of Notes set forth opposite the name
of such Underwriter at a price equal to _________% of the principal amount
thereof plus accrued interest, if any, from _________, 199_ to but not
including the Closing Date.
(b) Payment of the purchase price for, and delivery of, the Notes
shall be made at the offices of Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx
Xxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed
upon by the Underwriter and the Company at 10:00 A.M. on [_________] or such
other time not later than ten business days after such date as shall be
agreed upon by the Underwriter and the Company (such time and date of
delivery being herein called the "Closing Date"). Payment shall be made to
the Owner Trustee in same day funds against delivery of the Notes to, or at
the direction of, the Underwriter. The Notes to be so delivered will be
initially represented by one or more Notes registered in the name of Cede &
Co., the nominee of The Depository Trust Company ("DTC"). The interests of
beneficial owners of the Notes will be represented by book entries on the
records of DTC and participating members thereof. The Notes will be made
available for examination by the Underwriter not later than 10:00 A.M. on the
last business day prior to the Closing Date. The Notes will be delivered to
The Depository Trust Company in New York, New York on the business day prior
to the Closing Date, to be released upon the purchase thereof and payment
therefor in accordance herewith.
SECTION 3. Covenants. The Company covenants with you as follows:
(i) Prior to the termination of the offering of the Notes, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus
unless the Company has furnished the Underwriter a copy for its review
prior to filing and will not file any such proposed amendment or
supplement to which the Underwriter reasonably objects. Subject to the
foregoing sentence, the Company will cause the Final Prospectus to be
filed with the Commission pursuant to Rule 424. The Company will advise
the Underwriter promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424, (ii) when any amendment
to the Registration Statement relating to the Notes shall have become
effective, (iii) of any request by the Commission for any amendment of
the Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order
6
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(ii) The Company will use its best efforts to cause any
Computational Materials, Collateral Term Sheets and ABS Term Sheets
(each as defined in Section 10 below) with respect to the Notes which
are delivered by the Underwriter to the Company pursuant to Section 10
to be filed with the Commission on a Current Report on Form 8-K (the
"Current Report") pursuant to Rule 13a-11 under the Exchange Act not
later than the business day immediately following the day on which such
Computational Materials, Collateral Term Sheets or ABS Term Sheets are
delivered to counsel for the Company by the Underwriter as provided in
Section 10, and will promptly advise the Underwriter when such Current
Report has been so filed. Such Current Report shall be incorporated by
reference in the Final Prospectus and the Registration Statement.
Notwithstanding the two preceding sentences, the Company shall have no
obligation to file materials provided by the Underwriter pursuant to
Section 10 which, in the reasonable determination of the Company after
making reasonable efforts to consult with the Underwriter, are not
required to be filed pursuant to the No-Action Letters (as defined in
Section 10 below), or which contain erroneous information or contain any
untrue statement of a material fact or, which, when read in conjunction
with the Final Prospectus, omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; it being understood, however, that the Company shall have no
obligation to review or pass upon the accuracy or adequacy of, or to
correct, any Computational Materials, Collateral Term Sheets or ABS Term
Sheets provided by the Underwriter to the Company pursuant to Section 10
hereof.
(iii) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it shall
be necessary to amend or supplement the Final Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will prepare and file with the Commission, subject to
the first sentence of paragraph (i) of this Section 3, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance and will use its best efforts to cause
any required post-effective amendment to the Registration Statement
containing such amendment to be made effective as soon as possible;
provided, however, that the Company will not be required to file any
such amendment or supplement with respect to any Computational Materials
incorporated by reference in the Final Prospectus other than any
amendments or supplements of such Computational Materials that are
7
furnished to the Company pursuant to Section 10(d) hereof which the
Company determine to file in accordance therewith.
(iv) The Company will furnish to the Underwriter and counsel for
the Underwriter, without charge, executed copies of the Registration
Statement (including exhibits thereto) and each amendment thereto which
shall become effective on or prior to the Closing Date and, so long as
delivery of a prospectus by the Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any amendments thereof and supplements thereto
(other than exhibits to the related Current Report) as the Underwriter
may reasonably request. The Company will pay the expenses of printing
all documents relating to the initial offering, provided that any
additional expenses incurred in connection with the requirement of
delivery of a market-making prospectus will be borne by the Underwriter.
(v) To use its best efforts, in cooperation with the Underwriter,
to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United
States as the Underwriter may designate, and maintain or cause to be
maintained such qualifications in effect for as long as may be required
for the distribution of the Notes. 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 Notes have been so qualified.
(vi) The Issuer will use the net proceeds received by it from the
sale of the Notes in the manner specified in the related Prospectus
under "Use of Proceeds."
(vii) So long as any of the Notes shall be outstanding, the Company
will deliver to you each annual statement as to compliance delivered to
the Trustee pursuant to Section 3.09 of the Indenture, and each
statement of a firm of independent public accountants furnished to the
Trustee pursuant to Section 8.08 of the Indenture, as soon as such
statements are furnished to the Trustee, and will furnish to you monthly
a copy of the magnetic tape containing the Schedule of Accounts
information.
SECTION 4. Payment of Expenses. The Company agrees to pay: (a) the
costs incident to the authorization, issuance, sale and delivery of the Notes
and any taxes payable in connection therewith; (b) the costs incident to the
preparation, printing and filing under the Act of the Registration Statement
and any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Final Prospectus or Final Prospectus and any amendment to the
Final Prospectus or any document incorporated by reference therein, all as
provided in this Agreement; (d) the costs of reproducing and distributing
this Agreement; (e) the fees and expenses of qualifying the Notes under the
securities laws of the several jurisdictions and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriter); (f) any fees charged by securities rating
services for rating the Notes; (g) all costs and
8
expenses related to the issuance and delivery of "True Sale" and tax opinions
by [___________]; and (h) all other costs and expenses incident to the
performance of the obligations of the Underwriter (including half of the
costs and expenses of your counsel); provided that, except as provided in
this Section 4, the Underwriter shall pay any transfer taxes on the Notes
which they may sell and the expenses of advertising any offering of the Notes
made by the Underwriter and half the costs and expenses of their counsel.
If this Agreement is terminated by the Underwriter in accordance
with the provisions of Section 5 or Section 9, the Company shall reimburse
the Underwriter for all reasonable out-of-pocket expenses, including fees and
disbursements of counsel for the Underwriter.
SECTION 5. Conditions of Underwriter's Obligations. The obligations
of the Underwriter hereunder are subject to the accuracy of the
representations and warranties of the Company herein contained, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) All actions required to be taken and all filings required to be
made by the Company under the Act prior to the sale of the Notes shall have
been duly taken or made. At and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or the Underwriter, shall be contemplated by the
Commission.
(b) The Underwriter shall not have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement or
the Final Prospectus or any amendment or supplement thereto contained or
contains an untrue statement of a fact or omitted or omits to state a fact
which, in the opinion of [___________], counsel for the Underwriter, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(c) All corporate proceedings and other legal matters relating to
the authorization, form and validity of this Agreement, the Indenture, the
Trust Agreement, the Purchase Agreement, the Servicing Agreement, the
Registration Statement and the Final Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
satisfactory in all respects to counsel for the Underwriter, and the Company
shall have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(d) On the Closing Date, the Underwriter shall have received:
(1) The opinion, dated the Closing Date, of Xxxxxxxxxx, Xxxxxxxxxx
& Xxxx, counsel for the Issuer, substantially in the form attached hereto as
Exhibit A.
(2) The opinion, dated the Closing Date, of Xxxxxxx Xxxxxx, counsel
for the Company, substantially in the form attached hereto as Exhibit B.
9
(3) The favorable opinion, dated as of the Closing Date of
_________________, counsel for the Owner Trustee, substantially in the form
attached hereto as Exhibit C.
(4) The favorable opinions of local counsel to the Company in those
jurisdictions determined by the Underwriter, dated the Closing Date, in form
and substance acceptable to the Underwriter and its counsel.
(5) The favorable opinion, dated the Closing Date, of
________________, counsel for the Trustee, in form and substance satisfactory
to counsel for the Underwriter, to the effect that:
(i) The Trustee, at the time of its execution and delivery of the
Indenture, had full power and authority to execute and deliver the
Indenture and has full power and authority to perform its obligations
thereunder.
(ii) The Indenture has been duly and validly authorized, executed
and delivered by the Trustee and, assuming due authorization, execution
and delivery thereof by the Issuer, constitutes the valid and binding
agreement of the Trustee enforceable against the Trustee in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting creditors'
rights or by general principles of equity.
(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 was or is required for
the execution, delivery or performance by the Trustee of the Indenture.
(6) The favorable opinion, dated the Closing Date, of [___________]
, counsel for the Underwriter, with respect to the issue and sale of the
Notes, the Registration Statement, this Agreement, the Final Prospectus and
such other related matters as the Underwriter may require.
(e) On the Closing Date, 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 Final Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, and the Underwriter shall have
received a certificate of the Chairman of the Board, the President or any
Vice President of Xxxxxx Industries, on behalf of the Company, dated as of
the Closing Date, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1 are true
and correct with the same force and effect as though expressly made at and as
of the Closing Date, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior
to the Closing Date and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
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(f) At the Closing Date, Price Waterhouse LLP shall have furnished
to you a letter of such firm (I) to the effect that (i) they have made a
statistical sample of the Accounts, compared certain attributes from the
files relating to such Accounts to a magnetic tape prepared by the Issuer,
(ii) as a result of such comparison they are [95]% confident that the
information in Account files for the attributes so tested will not vary from
the corresponding information on such magnetic tape by more than [3]% and
(iii) based on certain assumptions supplied to them by the Issuer, the
amounts in the Collection Account on each Payment Date will be sufficient to
make the payment of interest and principal on the Notes issued by the Issuer
due on such Payment Date and to pay the final installment of principal of
such Notes on or before the Maturity Date for such Notes and (II) to the
effect of the letter furnished by them to the Trustee pursuant to Section
2.12(g) of the Indenture in connection with the issuance of the Notes. (Such
letter may consist of a copy of the letter furnished to the Trustee
accompanied by a letter addressed to you indicating that you may rely on such
letter as if it were addressed to you directly.)
(g) On the Closing Date, Price Waterhouse LLP shall have furnished
to you a letter or letters, dated as of the Closing Date, addressed to you,
to such effect as you reasonably may request in respect of the Final
Prospectus.
(h) On the Closing Date, 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 Date, as to the due acceptance of the Indenture by
the Trustee and the due execution and delivery of the Notes delivered by the
Trustee thereunder and such other matters as you shall request.
(i) By the Closing Date, the Class A-1 Notes shall be rated
["Aaa" by Xxxxx'x Investors Service, Inc. ("Xxxxx'x")]["AAA" by Standard &
Poor's Ratings Services ("Standard & Poor's")] ["AAA" by Xxxx & Xxxxxx Credit
Rating Co. ("DCR")] ["AAA" by Fitch IBCA, Inc. ("Fitch")] the Class A-2 Notes
be rated at least ["Aa2" by Xxxxx'x] ["AA+" by Standard & Poor's] ["AA" by
Fitch]["AA" by DCR]; the Class A-3 Notes be rated at least ["A2" by Xxxxx'x]
["AA" by Standard & Poor's] ["A" by Fitch] ["A" by DCR]; and the Class A-4
Notes be rated at least ["Baa2" by Xxxxx'x] ["BBB" by Standard & Poor's] ["BBB"
by Fitch]["BBB" by DCR].
(j) The Holding Account Agreement shall have been duly authorized,
executed and delivered by all parties thereto.
(k) The Purchase Agreement shall have been duly authorized,
executed and delivered by all parties thereto.
(l) Form UCC-1 financing statements with respect to the Trust
Estate shall have been filed in the appropriate offices in (i) the State of
Florida naming the Issuer as seller/debtor and the Trustee as buyer/secured
party and the Company as debtor and the Issuer as secured party and (ii) the
State of Delaware naming the Issuer as debtor and the Trustee as secured
party.
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(m) On the Closing Date, counsel for the Underwriter shall have
been furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Notes 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 in connection with the issuance and sale of the Notes as herein
contemplated shall be satisfactory in form and substance to the Underwriter
and counsel for the Underwriter.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriter by notice to the Company at any time at or
prior to the Closing Date, and such termination shall be without liability of
any party to any other party except as provided in Section 4.
SECTION 6. Indemnification.
A. The Company agrees to indemnify and hold harmless the
Underwriter and each person if any, who controls the Underwriter within the
meaning of the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement for the registration
of the Notes as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based
upon omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and agree to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i)
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein (A) in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Underwriter specifically for
use in connection with the preparation thereof or (B) in any Current Report
or any amendment or supplement thereof, except to the extent that any untrue
statement or alleged untrue statement therein results (or is alleged to have
resulted) directly from an error (a "Collateral Error") in the information
concerning the Accounts furnished by the Company to the Underwriter in
writing or by electronic transmission that was used in the preparation of any
Computational Materials, Collateral Term Sheets or ABS Term Sheets included
in such Current Report (or amendment or supplement thereof), (ii) such
indemnity with respect to the Basic Prospectus or any Preliminary Final
Prospectus shall not inure to the benefit of the Underwriter (or any person
controlling the Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Notes which are the subject thereof
if such person did not receive a copy of the Final Prospectus (or the Final
Prospectus as amended or supplemented) excluding
12
documents incorporated therein by reference at or prior to the confirmation
of the sale of such Notes to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Basic Prospectus or any Preliminary Final Prospectus was
corrected in the Final Prospectus (or the Final Prospectus as amended or
supplemented), and (iii) such indemnity with respect to any Collateral Error
shall not inure to the benefit or the Underwriter (or any person controlling
the Underwriter) from whom the person asserting any loss, claim, damage or
liability received any Computational Materials, Collateral Term Sheets or ABS
Term Sheets that were prepared on the basis of such Collateral Error, if,
prior to the time of confirmation of the sale of the Notes to such person,
the Company notified the Underwriter in writing of the Collateral Error or
provided in written or electronic form information superseding or correcting
such Collateral Error (in any such case, a "Corrected Collateral Error"), and
the Underwriter failed to notify such person thereof or to deliver such
person corrected Computational Materials, Collateral Term Sheets and/or ABS
Term Sheets, as applicable. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
B. The Underwriter agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Underwriter, but only with
reference to (A) written information relating to the Underwriter furnished to
the Company by or on behalf of the Underwriter specifically for use in the
preparation of the documents referred to in the foregoing indemnity, or (B)
any Computational Materials, Collateral Term Sheets or ABS Term Sheets
furnished to the Company by the Underwriter pursuant to Section 10 and
incorporated by reference in the Registration Statement or the Final
Prospectus (except that no such indemnity shall be available for any losses,
claims, damages or liabilities, or actions in respect thereof resulting from
any Collateral Error, other than a Corrected Collateral Error). This
indemnity agreement will be in addition to any liability which the
Underwriter may otherwise have.
C. Promptly after receipt by any indemnified party under this
Section 6 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
any indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from
any liability which it may have under this Section 6 except to the extent it
has been materially prejudiced by such failure and, provided further, that
the failure to notify any indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under
this Section 6.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its
13
election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Section 6 for
any legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (i) the employment thereof has been specifically authorized by
the indemnifying party in writing; (ii) such indemnified party shall have
been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to
the indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if
such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to local counsel) at any time for all such indemnified
parties, which firm shall be designated in writing by the Underwriter, if the
indemnified parties under this Section 6 consist of the Underwriter or any of
its controlling persons, or by the Company, if the indemnified parties under
this Section 6 consists of the Company or any of the Company's directors,
officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 6(A) and (B), shall use its best efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees
to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than
30 days after receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party
14
under Section 6(A) or (B) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriter on the other from the
offering of the Notes or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriter on
the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations.
The relative benefits of the Underwriter and the Company shall be
deemed to be in such proportion so that the Underwriter is responsible for
that portion represented by the percentage that the underwriting discount
appearing on the cover page of the Final Prospectus bears to the public
offering price appearing on the final cover page of the Final Prospectus.
The relative fault of the Underwriter and the Company shall be
determined by reference to whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriter, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission and other
equitable considerations.
The Company and the Underwriter agree that it would not be just and
equitable if contributions pursuant to this Section 7 were to be determined
by pro rata allocation or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 7 shall be deemed to include, for purposes of this Section 7, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
In no case shall the Underwriter be responsible for any amount in
excess of the underwriting discount applicable to the Notes purchased by the
Underwriter hereunder. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
SECTION 8. Representations Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriter or
controlling person thereof, or by or on behalf of the Company and shall
survive delivery of the Notes to the Underwriter.
15
SECTION 9. Termination of Agreement. (a) The Underwriter may
terminate this Agreement, by notice to the Company at any time at or prior to
the Closing Date (i) if there has occurred any material adverse change in the
financial markets in the United States or any outbreak of hostilities or
other calamity or crisis, the effect of which is such as to make it, in the
judgment of the Underwriter, impracticable to market the Notes or to enforce
contracts for the sale of the Notes, or (ii) if trading generally on either
the American Stock Exchange or the New York 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.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except
as provided in Section 4 hereof.
SECTION 10. Computational Materials and ABS Term Sheets.
(a) Not later than 10:30 a.m., New York City time, on a date no
later than four business days before delivery of the Final Prospectus to the
Underwriter, the Underwriter shall deliver to the Company five complete
copies of all materials provided by the Underwriter to prospective investors
in the Notes which constitute either (i) "Computational Materials" within the
meaning of the no-action letter dated May 20, 1994 issued by the Division of
Corporation Finance of the Commission to Xxxxxx, Xxxxxxx Acceptance
Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated, and Xxxxxx Structured
Asset Corporation and the no-action letter dated May 27, 1994 issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (together, the "Xxxxxx Letters") or (ii) "ABS Term Sheets" within
the meaning of the no-action letter dated February 17, 1995 issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (the "PSA Letter" and together with the Xxxxxx Letters, the
"No-Action Letters"), if the filing of such materials with the Commission is
a condition of the relief granted in such letters. In the case of any such
materials that constitute "Collateral Term Sheets" within the meaning of the
PSA Letter, if such Collateral Term Sheets have not previously been delivered
to the Company as contemplated by Section 10(b)(i) below, five complete
copies of such Collateral Term Sheets shall be delivered by the Underwriter
to the Company no later than 10:30 a.m., New York City time, on the first
business day following the date on which such Collateral Term Sheets were
initially provided to a potential investor. Each delivery of Computational
Materials, Collateral Term Sheets and/or ABS Term Sheets to the Company
pursuant to this paragraph (a) shall be effected by delivering four copies of
such materials to counsel for the Company on behalf of the Company at the
address specified in Section 11 hereof and one copy of such materials to the
Company.
(b) The Underwriter represents and warrants to and agree with the
Company, as of the date hereof and as of the Closing Date, that:
16
(i) if the Underwriter has provided any Collateral Term
Sheets to potential investors in the Notes prior to the date
hereof and if the filing of such materials with the Commission
is a condition of the relief granted in the PSA Letter, then
in each such case the Underwriter delivered four copies of
such materials to counsel for the Company on behalf of the
Company at the address specified in Section 11 hereof and one
copy of such materials to the Company no later than 10:30
a.m., New York City time, on the first business day following
the date on which such materials were initially provided to a
potential investor;
(ii) the Computational Materials (either in original,
aggregated or consolidated form), Collateral Term Sheets and
ABS Term Sheets furnished to the Company pursuant to Section
10(a) or as contemplated in Section 10(b)(i) constitute all of
the materials furnished to prospective investors by the
Underwriter (whether in written, electronic or other format)
prior to the time of delivery thereof to the Company with
respect to the Notes in accordance with the No-Action Letters,
and such Computational Materials, Collateral Term Sheets and
ABS Term Sheets comply with the requirements of the No-Action
Letters;
(iii) except as resulting directly from any Collateral
Error, on the respective dates any such Computational
Materials, Collateral Term Sheets and/or ABS Term Sheets with
respect to the Notes were last furnished to each prospective
investor and on the date of delivery thereof to the Company
pursuant to this Section 10 and on the Closing Date, such
Computational Materials, Collateral Term Sheets and/or ABS
Term Sheets did not and will not include any untrue statement
of a material fact, or, when read in conjunction with the
Final Prospectus, omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading;
(iv) all Computational Materials, Collateral Term Sheets
and ABS Term Sheets contained and will contain a legend,
prominently displayed on the first page thereof, to the effect
that the Company has not prepared, reviewed or participated in
the preparation of such Computational Materials, Collateral
Term Sheets or ABS Term Sheets, is not responsible for the
accuracy thereof and has not authorized the dissemination
thereof;
(v) all Collateral Term Sheets with respect to the Notes
furnished to potential investors contained and will contain a
legend, prominently displayed on the first page thereof,
indicating that the information contained therein will be
superseded by the description of the Accounts contained in the
Final Prospectus and, except in the case of
17
the initial Collateral Term Sheet, that such information
supersedes the information in all prior Collateral Term
Sheets; and
(vi) on and after the date hereof, the Underwriter shall
not deliver or authorize the delivery of any Computational
Materials, Collateral Term Sheets, ABS Term Sheets or other
materials relating to the Notes (whether in written,
electronic or other format) to any potential investor unless
such potential investor has received a Final Prospectus prior
to or at the same time as the delivery of such Computational
Materials, Collateral Term Sheets, ABS Term Sheets or other
materials.
Notwithstanding the foregoing, the Underwriter makes no
representation or warranty as to whether any Computational Materials,
Collateral Term Sheets or ABS Term Sheets included or will include any untrue
statement resulting directly from any Collateral Error (except any Corrected
Collateral Error, with respect to materials prepared after the receipt by the
Underwriter from the Company of notice of such Corrected Collateral Error or
materials superseding or correcting such Corrected Collateral Error).
(c) The Underwriter acknowledges and agrees that the Company has
not authorized and will not authorize the distribution of any Computational
Materials, Collateral Term Sheets or ABS Term Sheets to any prospective
investor, and agrees that any Computational Materials, Collateral Term Sheets
or ABS Term Sheets with respect to the Notes furnished to prospective
investors shall include a disclaimer in the form set forth in paragraph
(b)(v) above. The Underwriter agrees that it will not represent to investors
that any Computational Materials, Collateral Term Sheets and/or ABS Term
Sheets were prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, it shall be necessary to amend or
supplement the Final Prospectus as a result of an untrue statement of a
material fact contained in any Computational Materials, Collateral Term
Sheets or ABS Term Sheets provided by the Underwriter pursuant to this
Section 10 or the omission to state therein a material fact required, when
considered in conjunction with the Final Prospectus, to be stated therein or
necessary to make the statements therein, when read in conjunction with the
Final Prospectus, not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Act or the rules thereunder,
the Underwriter, at its expense, promptly will prepare and furnish to the
Company for filing with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. The Underwriter represents and warrants to the Company, as of the
date of delivery of such amendment or supplement to the Company, that such
amendment or supplement will not include any untrue statement of a material
fact or, when read in conjunction with the Final Prospectus, omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Company shall have no obligation to
file such amendment or supplement if the Company determines that (i) such
amendment or supplement contains any untrue statement of a material
18
fact or, when read in conjunction with the Final Prospectus, omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; it being understood, however, that the
Company shall have no obligation to review or pass upon the accuracy or
adequacy of, or to correct, any such amendment or supplement provided by the
Underwriter to the Company pursuant to this paragraph (d) or (ii) such filing
is not required under the Act.
(e) The Underwriter (at its own expense) further agrees to provide
to the Company any accountants' letters obtained relating to the
Computational Materials, Collateral Term Sheets and/or ABS Term Sheets, which
accountants' letters shall be addressed to the Company or shall state that
the Company may rely thereon; provided that the Underwriter shall have no
obligation to procure such letter.
SECTION 11. 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 _______________________________________,
Attention:_________; notices to the Company shall be directed to the Company
at 0000 Xxxxx Xxxx Xxxxx Xxxxxxx, Xxxxx, Xxxxxxx 00000, Attention: Xxxx X.
Xxxxxxxx.
SECTION 12. Parties. This Agreement shall each inure to the benefit
of and be binding upon the Underwriter, the Company, and their respective
successors. Nothing expressed or mentioned in this 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 Section 6 and their heirs
and legal representatives, any legal or equitable right, remedy or claim
under or with respect to this Agreement or any provision herein or therein
contained. This 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 a Note from the
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law and Time. This 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.
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company counterparts hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriter and the Company in accordance with its terms.
Very truly yours,
MID-STATE HOMES, INC.
By:
-----------------------
Name:
---------------------
Title:--------------------
CONFIRMED AND ACCEPTED, as of the date first above written:
[UNDERWRITER]
By:
-------------------------
Name:
-----------------------
Title:
----------------------
20
Schedule I
--------------------------- -------------------------- -------------------------- -------------------------- ----------------------
Principal Amount of Principal Amount of Principal Amount of Principal Amount of
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes Class A-4 Notes
--------------------------- -------------------------- -------------------------- -------------------------- ----------------------
--------------------------- -------------------------- -------------------------- -------------------------- -----------------------
$ $ $ $
--------------------------- -------------------------- -------------------------- -------------------------- -----------------------
$ $ $ $
--------------------------- -------------------------- -------------------------- -------------------------- -----------------------
$ $ $ $
--------------------------- -------------------------- -------------------------- -------------------------- -----------------------
$ $ $ $
--------------------------- -------------------------- -------------------------- -------------------------- -----------------------
$ $ $ $
--------------------------- -------------------------- -------------------------- -------------------------- -----------------------
EXHIBIT A
[Form of New York Counsel Opinion]
A-1
EXHIBIT X-x
[Form of Florida Counsel Opinion]
B-1-1
EXHIBIT B-2
[Form of Florida Counsel Opinion]
B-2-1
EXHIBIT C
[Form of Owner Trustee Opinion]
C-1
