MLCC MORTGAGE INVESTORS, INC.
Mortgage Loan Asset Backed Pass-Through
Certificates
UNDERWRITING AGREEMENT
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____________, 199_
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
MLCC Mortgage Investors, Inc. (the "Company"), a Delaware corporation,
with its principal place of business in Jacksonville, Florida, is a wholly-
owned limited-purpose finance company of Xxxxxxx Xxxxx Credit Corporation
("MLCC"), a Delaware corporation, which is an indirect wholly-owned
subsidiary of Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation. The Company
has authorized the issuance and sale of Mortgage Pass-Through Certificates
having aggregate outstanding principal balances of up to $_______________
(such certificates evidencing interests in pools of mortgage loans, the
"Certificates"). The Certificates may be issued in various series, and,
within each series, in one or more classes, and, within each class, in one or
more sub-classes, in one or more offerings on terms determined at the time of
sale (each such series, a "Series" and each such class, a "Class"). Each
Series of the Certificates will be issued under a separate pooling and
servicing agreement (each, a "Pooling and Servicing Agreement") with respect
to such Series among the Company, as seller, a master servicer to be
identified in the prospectus supplement for each such Series (the "Master
Servicer") and a trustee to be identified in the prospectus supplement for
each such Series (the "Trustee"). The Certificates of each Series will
evidence specified interests in separate pools (each, a "Mortgage Pool") of
one- to four-family mortgage loans (the "Mortgage Loans"), which may include
Additional Collateral Mortgage Loans, and certain other property held in
trust with respect to such Series (each, a "Trust Fund"). The form of each
Pooling and Servicing Agreement has been filed as an exhibit to the
Registration Statement (hereinafter defined).
The Certificates are more fully described in a Prospectus and Prospectus
Supplement (hereinafter defined) which the Company has furnished to you.
Capitalized terms used but not defined herein shall have the meanings given
to them in the Pooling and Servicing Agreement. The term "you" as used
herein, unless the context otherwise requires, shall mean you and such
persons, if any, as are named as co-managers in the applicable Terms
Agreement (defined below).
Each offering of Certificates pursuant to this Agreement will be made
through you or through an underwriting syndicate managed by you. Whenever
the Company determines to make an offering of Certificates it will enter into
an agreement (the "Terms Agreement") providing for the sale of such
Certificates to, and the purchase and offering thereof by, you and such other
underwriters, if any, selected by you as have authorized you to enter into
such Terms Agreement on their behalf (the "Underwriters," which term shall
include you whether acting alone in the sale of Certificates or as a member
of an underwriting syndicate). The Terms Agreement relating to each offering
of Certificates shall specify, among other things, the principal amount or
amounts of Certificates to be issued, the price or prices at which the
Certificates are to be purchased by the Underwriters from the Company and the
initial public offering price or prices or the method by which the price or
prices at which such Certificates are to be sold will be determined. A Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written
telecommunication between you and the Company. Each offering of Certificates
will be governed by this Agreement, as supplemented by the applicable Terms
Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon the Underwriters participating in the offering
of such Certificates.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. _____________)
relating to the Certificates, and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
"1933 Act"), and has filed, and proposes to file, such amendments thereto as
may have been required to the date hereof and as shall be required prior to
the effective date thereof pursuant to the 1933 Act and the rules of the
Commission thereunder (the "Regulations"). Such registration statement, as
amended at the time when each becomes effective under the 1933 Act and at the
Representation Date defined below, is referred to herein as the "Registration
Statement". The base prospectus relating to the sale of a particular Series
of Certificates by the Company is referred to herein as the "Basic
Prospectus," and a supplement to the Prospectus contemplated by Section 3(a)
hereof is referred to herein as a "Prospectus Supplement". The Basic
Prospectus and the related Prospectus Supplement are collectively referred to
as the "Prospectus".
SECTION 1. Representations and Warranties. (a) The Company
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represents and warrants to you as of the date hereof, and to the
Underwriters, if any, named in the applicable Terms Agreement, all as of the
date of such Terms Agreement (in each case, the "Representation Date"), as
follows:
(1) The Registration Statement, at the time the Registration
Statement became effective did, and the Registration Statement,
Prospectus and Prospectus Supplement as of the applicable Representation
Date will, comply in all material respects with the requirements of the
1933 Act and the Regulations. The Registration Statement, at the time
it became effective did not, and as of the applicable Representation
Date will not, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. The Prospectus, as amended or
supplemented as of the applicable Representation Date, does not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
(i) any statements in, or omissions from, the Registration Statement or
the Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriters expressly for
use in the Registration Statement or the Prospectus or (ii) information
in any "Computational Materials" or "Structural Term Sheets" (each as
hereinafter defined) provided by the Underwriter to the Company pursuant
to Section 4 except to the extent that the information set forth therein
is based on or constitutes "Pool Information". As used herein, Pool
Information means information with respect to the characteristics of the
Mortgage Loans as provided by, or on behalf of, the Company or MLCC to
the Underwriter in final form and set forth in the Prospectus
Supplement. The conditions to the use by the Company of a registration
statement on Form S-3 under the 1933 Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus. There are no contracts or
documents of the Company which are required to be filed as exhibits to
the Registration Statement pursuant to the 1933 Act or the Regulations
which have not been so filed.
(2) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware
with corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement, the
applicable Pooling and Servicing Agreement, and with respect to a Series
of Certificates, the Certificates and the applicable Terms Agreement;
and the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which the
ownership or lease of its properties or the conduct of its business
requires such qualification.
(3) The Company is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or its properties
may be bound, which default might result in any material adverse change
in the financial condition, earnings, affairs or business of the Company
or which might materially and adversely affect the properties or assets
thereof.
(4) The execution and delivery by the Company of this Agreement,
the applicable Terms Agreement and the applicable Pooling and Servicing
Agreement are within the corporate power of the Company and have been
duly authorized by all necessary corporate action on the part of the
Company; and with respect to a Series of Certificates, neither the issu-
ance and sale of the Certificates to the Underwriters, nor the execution
and delivery by the Company of this Agreement and the related Pooling
and Servicing Agreement, nor the consummation by the Company of the
transactions therein contemplated, nor compliance by the Company with
the provisions hereof or thereof, will materially conflict with or
result in a material breach of, or constitute a material default under,
any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Company or its properties or
the restated certificate of incorporation or by-laws of the Company, or
any of the provisions of any indenture, mortgage, contract or other
instrument of which the Company is a party or by which it is bound or
result in the creation or imposition of any lien, charge or encumbrance
upon any of its property pursuant to the terms of any such indenture,
mortgage, contract or other instrument.
(5) This Agreement has been, and each applicable Terms Agreement
when executed and delivered as contemplated hereby and thereby, will
have been duly authorized, executed and delivered by the Company, and
each constitutes, or will constitute when so executed and delivered, a
legal, valid and binding instrument enforceable against the Company in
accordance with its terms, subject (a) to applicable bankruptcy,
insolvency, reorganization, moratorium, or other similar laws affecting
creditors' rights generally, (b) as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (c) as to enforceability with
respect to rights of indemnity thereunder, to limitations of public
policy under applicable securities laws.
(6) Each applicable Pooling and Servicing Agreement when executed
and delivered as contemplated hereby and thereby will have been duly
authorized, executed and delivered by the Company, and will constitute
when so executed and delivered, a legal, valid and binding instrument
enforceable against the Company in accordance with its terms, subject
(a) to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and (b) as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(7) As of the Closing Time (as defined in Section 2 below) with
respect to a Series of Certificates, the Certificates will have been
duly and validly authorized by the Company, and, when executed and
authenticated as specified in the related Pooling and Servicing
Agreement, will be validly issued and outstanding and will be entitled
to the benefits of the related Pooling and Servicing Agreement.
(8) There are no actions, proceedings or investigations now
pending against the Company or, to the knowledge of the Company,
threatened against the Company, before any court, administrative agency
or other tribunal (i) asserting the invalidity of this Agreement, the
applicable Pooling and Servicing Agreement or with respect to a Series
of Certificates, the Certificates, (ii) seeking to prevent the issuance
of such Certificates or the consummation of any of the transactions
contemplated by this Agreement or such Pooling and Servicing Agreement,
(iii) which might materially and adversely affect the performance by the
Company of its obligations under, or the validity or enforceability of,
this Agreement or such Certificates or (iv) seeking to adversely affect
the federal income tax attributes of such Certificates described in the
Prospectus and the related Prospectus Supplement.
(9) Any taxes, fees and other governmental charges that are
assessed and due in connection with the execution, delivery and issuance
of this Agreement, the applicable Pooling and Servicing Agreement and
with respect to a Series of Certificates, or the Certificates shall have
been paid at or prior to the Closing Time with respect to such Series of
Certificates.
(10) No filing or registration with, notice to or consent,
approval, authorization or order of any court or governmental authority
or agency is required for the consummation by the Company of the
transactions contemplated by this Agreement, the applicable Pooling and
Servicing Agreement or the applicable Terms Agreement, except such as
may be required under the 1933 Act, the Regulations, or state securities
or Blue Sky laws.
(11) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business
now operated by it and as described in the Prospectus and the Company
has received no notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
conduct of the business, operations, financial condition or income of
the Company.
(12) As of the Closing Time, with respect to a Series of
Certificates, the security interest of the Trustee (to the extent the
transfer by the Company is deemed to be a grant of a security interest
and not a sale) in the Mortgage Notes and the related Mortgages included
in the Trust Fund will be perfected, with respect to (a) the Mortgage
Notes, upon delivery thereof to the Trustee and will constitute
perfected first priority interest therein, and (b) the Mortgages, upon
delivery to the Trustee of instruments of assignment in recordable form
assigning each Mortgage to the Trustee and the recording of each such
instrument of assignment in the appropriate recording office in which
the Mortgaged Property is located, or if supported by an opinion of
counsel, without recording, and will constitute a perfected first
priority security interest therein.
(13) As of the Closing Time, with respect to a Series of
Certificates, in the event that a Reserve Fund is established and does
not constitute part of the Trust Fund for such Series, the Trustee will
have acquired a duly and validly perfected security interest in the
Reserve Fund with respect to such Series, if any, subject to no prior
lien, mortgage, security interest, pledge, charge or other encumbrance.
(14) As of the Closing Time, with respect to a Series of
Certificates, each of the Mortgage Loans will have the characteristics
described in the Prospectus Supplement.
(15) Neither the Company nor the Trust Fund created by the
applicable Pooling and Servicing Agreement will be subject to
registration as an "investment company" under the Investment Company Act
of 1940, as amended (the "1940 Act").
(16) At the Closing Time, with respect to a Series of
Certificates, the Certificates, the applicable Pooling and Servicing
Agreement, the applicable Terms Agreement and any Primary Insurance
Policies, Mortgage Pool Insurance Policies, Standard Hazard Insurance
Policies, Special Hazard Insurance Policies, Mortgagor Bankruptcy
Insurance and Alternate Credit Enhancement, if any, will conform in all
material respects to the descriptions thereof contained in the Pro-
spectus.
(17) At the Closing Time, with respect to a Series of
Certificates, the Certificates shall have received the certificate
ratings specified in the related Terms Agreement.
(18) At the Closing Time, with respect to a Series of
Certificates, each of the representations and warranties of the Company
set forth in the related Pooling and Servicing Agreement will be true
and correct.
(19) As of the Closing Time, with respect to a Series of
Certificates, any corporate guaranty relating to, among other things,
the obligations of the Master Servicer to make advances (a "Guaranty")
will have been duly and validly authorized, executed and delivered by,
and will constitute a legal, valid and binding obligation of, the
guarantor (the "Guarantor"), subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and as to enforceability to general
principles of equity (regardless whether such enforceability is
considered in a proceeding in equity or at law).
(20) As of the Closing Time, with respect to a Series of
Certificates, the applicable Pooling and Servicing Agreement will have
been duly authorized, executed and delivered by, and will constitute a
legal, valid and binding obligation of, the Master Servicer, enforceable
against the Master Servicer in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and as to enforceability to general principles of equity (regardless
whether such enforceability is considered in a proceeding in equity or
at law).
(21) As of the Closing Time, with respect to a Series of
Certificates, all Primary Insurance Policies, Mortgage Pool Insurance
Policies, Standard Hazard Insurance Policies, Special Hazard Insurance
Policies and Mortgagor Bankruptcy Insurance, if any, with respect to the
Mortgage Loans constituting a portion of the Trust Fund with respect to
such Series (each an "Insurance Policy" and collectively, the "Insurance
Policies") will have been duly and validly authorized, executed and
delivered by, and will constitute legal, valid and binding obligations
of, the Primary Mortgage Insurers, the Mortgage Pool Insurers, the
Standard Hazard Insurers, the Special Hazard Insurers and the Mortgagor
Bankruptcy Insurers (each, an "Insurer" and collectively, the "Insur-
ers") enforceable in accordance with their respective terms, except that
such enforceability thereof may be subject to (a) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and (b) general
principles of equity (regardless whether such enforceability is
considered in a proceeding in equity or law).
(22) As of the Closing Time, with respect to a Series of
Certificates, any Alternate Credit Enhancement constituting a portion of
the Trust Fund with respect to such Series will have been duly and
validly authorized, executed and delivered by, and will constitute
legal, valid and binding obligations of the provider of such Alternate
Credit Enhancement, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and as to
enforceability to general principles of equity (regardless whether such
enforceability is considered in proceeding in equity or at law).
(b) The Underwriter represents and warrants to, and agrees with, the
Company and MLCC as of the date hereof and as of the Representation Date that
the Underwriter has complied and will comply with all of its obligations
arising under Section 4 and, with respect to the Computational Materials and
Structural Term Sheets, if any, provided by the Underwriter to the Company
pursuant to Section 4, such Computational Materials and Structural Term
Sheets are accurate in all material respects (taking into account the
assumptions explicitly set forth in such Computational Materials and
Structural Term Sheets, except for any errors therein attributable to errors
or mistakes in the Pool Information). The Computational Materials and
Structural Term Sheets provided by the Underwriter to the Company constitute
a complete set of all Computational Materials and Structural Term Sheets
required to be filed with the Commission pursuant to the No-Action Letters.
The Company shall not be deemed to have made the representations and
warranties contained in clauses (a)(19) through (a)(22) to the extent you
have received representations and warranties from the applicable Guarantor,
if any, Master Servicer, Insurer or provider of Alternate Credit Enhancement,
if any, as to the matters covered in such clause in a certificate in form
satisfactory to your counsel and delivered to you at the applicable Closing
Time.
Any certificate signed by an officer of the Company, the Guarantor, the
Master Servicer, the Insurer or a provider of Alternate Credit Enhancement
and delivered to you or counsel for the Underwriters in connection with an
offering of Certificates shall be deemed, a representation and warranty as to
the matters covered thereby to each person to whom the representations and
warranties in this Section 1 are made.
SECTION 2. Purchase and Sale. The commitment of the Underwriters
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to purchase Certificates pursuant to any Terms Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Certificates to
be purchased by the Underwriters shall be made at the office of Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, World Financial Center, Xxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed
upon by you and the Company, at such time or date as shall be agreed upon by
you and the Company in the Terms Agreement (each such time and date being
referred to as a "Closing Time"). Unless otherwise specified in the
applicable Terms Agreement, payment shall be made to the Company, at the
option of the Company, either (a) by certified or official bank check or
checks in New York Clearing House or similar next day funds payable to the
order of the Company, or (b) in immediately available Federal funds wired to
such bank as may be designated by the Company; provided, however, that if
payment is made in immediately available Federal funds, the Company shall
simultaneously reimburse the Underwriters for the cost to the Underwriters of
such funds, based on the Underwriters' cost of borrowing such funds for one
day at their most favorable commercial paper rate at the Closing Time. Such
Certificates shall be in such denominations and registered in such names as
you may request in writing at least two business days prior to the applicable
Closing Time. Such Certificates, which may be in temporary form, will be
made available for examination and packaging by you no later than 12:00
noon on the first business day prior to the applicable Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with
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each of you and the Underwriters participating in the applicable offering of
a Series of Certificates, as follows with respect to such Series of
Certificates:
(a) Contemporaneously with the execution of each Terms Agreement,
the Company will prepare a Prospectus Supplement setting forth the
principal amount of Certificates covered thereby, the price or prices at
which the Certificates are to be purchased by the Underwriters from the
applicable Trust, either the initial public offering price or prices or
the method by which the price or prices by which the Certificates are to
be sold will be determined, the selling concession(s) and
reallowance(s), if any, any delayed delivery arrangements, and such
other information as you and the Company deem appropriate in connection
with the offering of the Certificates. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission for
filing pursuant to Rule 424 under the 1933 Act and will furnish to the
Underwriters as many copies of the Prospectus and such Prospectus
Supplement as you shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Certificates by you or
the Underwriters, any event shall occur or condition exists as a result
of which it is necessary, in the opinion of your counsel, counsel for
the Company, or otherwise, to further amend or supplement the Prospectus
in order that the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of circumstances existing at the time
it is delivered to a purchaser, not misleading or if it shall be neces-
sary, in the opinion of any such counsel or otherwise, at any such time
to amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the Regulations
thereunder, the Company will promptly prepare and file with the
Commission such amendment or supplement as may be necessary to correct
such untrue statement or omission or to make the Registration Statement
comply with such requirements, and within two business days will furnish
to the Underwriters as many copies of the Prospectus, as so amended or
supplemented, as you shall reasonably request.
(c) The Company will give you reasonable notice of its intention
to file any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act or
otherwise, will furnish you with copies of any such amendment or
supplement or other documents proposed to be filed a reasonable time in
advance of filing, and will not file any such amendment or supplement or
other documents in a form to which you or your counsel shall object.
(d) The Company will notify you immediately, and confirm the
notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any
document, other than quarterly and annual reports to be filed pursuant
to the Securities Exchange Act of 1934, as amended (the "1934 Act"),
(iii) of the receipt of any comments from the Commission with respect to
the Registration Statement, the Prospectus or any Prospectus Supplement,
(iv) of any request by the Commission for any amendment to the
Registration Statement of any amendment or supplement to the Prospectus
or for additional information, and (v) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(e) The Company will deliver to you as many signed and as many
conformed copies of the Registration Statement (as originally filed) and
of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by
reference in the Prospectus) as you may reasonably request.
(f) The Company will endeavor, in cooperation with you, to qualify
the Certificates for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as you
may designate, and will maintain or cause to be maintained such
qualifications in effect for as long as may be required for the
distribution of the Certificates. The Company will file or cause the
filing of such statements and reports as may be required by the laws of
each jurisdiction in which the Certificates have been qualified as above
provided.
SECTION 4. Computational Materials, Collateral Term Sheets and
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Structural Terms Sheets. It is understood that you may prepare and provide
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to prospective investors certain Computational Materials, Collateral Term
Sheets and Structural Term Sheets in connection with your offering of the
Certificates, subject to the following conditions:
(a) The Underwriter shall comply with all applicable laws and
regulations in connection with the use of Computational Materials,
including the No-Action letter of May 20, 1994 issued by the Commission
to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co.
Incorporated and Xxxxxx Structured Asset Corporation as made applicable
to other issuers and underwriters by the Commission in response to the
request of the Public Securities Association dated May 24, 1994
(collectively, the "Xxxxxx/PSA Letter"), as well as the PSA Letter
referred to below. The Underwriter shall comply with all applicable
laws and regulations in connection with the use of Collateral Terms
Sheets and Structural Term Sheets, including the No-Action Letter of
February 17, 1995 issued by the Commission to the Public Securities
Association (the "PSA Letter" and, together with the Xxxxxx/PSA Letter,
the "No-Action Letters").
(b) As used herein, "Computational Materials" shall have the
meaning given such term in the No-Action Letters, but shall include only
those Computational Materials that have been prepared and delivered to
prospective investors by or at the direction of the Underwriter. As
used herein, "Structural Term Sheets" and "Collateral Term Sheets" shall
have the meanings given such terms in the PSA Letter, but shall include
(i) only those Structural Term Sheets that have been prepared and
delivered to prospective investors by or at the direction of the
Underwriter and (ii) only those Collateral Term Sheets that have been
prepared by the Company or the Underwriter and delivered to prospective
investors by or at the direction of the Underwriter.
(c) The Underwriter shall provide to the Company copies (in such
format as is required by the Company) of all Computational Materials and
Structural Term Sheets that are required to be filed with the Commission
pursuant to the No-Action Letters. The Underwriter may provide to the
Company copies of the foregoing in a consolidated or aggregated form,
including all information required to be filed. All Computational
Materials and Structural Term Sheets must be provided to the Company by
the Underwriter not later than 10:00 a.m. on the first business day
prior to the day on which the filing of such materials is to be made
with the Commission.
(d) (i) All Computational Materials and Structural Term Sheets
provided to prospective investors by the Underwriter that are required
to be filed pursuant to the No-Action Letters shall bear a legend on
each page substantially in the following form:
"Recipients must read the information contained in the
attached statement. Do not use or rely on this
information if you have not received and reviewed the
statement. If you have not received the statement, call
your Xxxxxxx Xxxxx account executive for another copy."
The statement referenced above shall be substantially in the
following form:
"The attached tables and other statistical analyses (the
"Computational Materials") are privileged and confidential and are
intended for use by the addressee only. These Computational
Materials are furnished to you solely by Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and not by the issuer
of the securities or any of its affiliates. The issuer of these
securities has not prepared or taken part in the preparation of
these materials. Neither Xxxxxxx Xxxxx, the issuer of the
securities nor any of its affiliates makes any representation as to
the accuracy or completeness of the information herein. The
information herein is preliminary, and will be superseded by the
applicable Prospectus Supplement and by any other information
subsequently filed with the Securities and Exchange Commission.
They may not be provided to any third party other than the
addressee's legal, tax, financial and/or accounting advisors for
the purposes of evaluating said material.
Numerous assumptions were used in preparing the Computational
Materials which may or may not be stated therein. As such, no
assurance can be given as to the accuracy, appropriateness or
completeness of the Computational Materials in any particular
context; or as to whether the Computational Materials and/or the
assumptions upon which they are based reflect present market
conditions or future market performance. These Computational
Materials should not be construed as either projections or
predictions or as legal, tax, financial or accounting advice.
Any yields or weighted average lives shown in the Computational
Materials are based on prepayment assumptions and actual prepayment
experience may dramatically affect such yields or weighted average
lives. In addition, it is probable that prepayments on the
underlying assets will occur at rates slower or faster than the
rates assumed in the attached Computational Materials.
Furthermore, unless otherwise provided, the Computational Materials
assume no losses on the underlying assets and no interest short-
fall. The specific characteristics of the securities may differ
from those shown in the Computational Materials due to differences
between the actual underlying assets and the hypothetical assets
used in preparing the Computational Materials. The principal amount
and structure of any security described in the Computational
Materials are subject to change prior to issuance.
Although a registration statement (including the prospectus)
relating to the securities discussed in this communication has been
filed with the Securities and Exchange Commission and is effective,
the final prospectus supplement relating to the securities
discussed in this communication has not been filed with the
Securities and Exchange Commission. This communication shall not
constitute an offer to sell or the solicitation of any offer to buy
nor shall there be any sale of the securities discussed in this
communication in any state in which such offer, solicitations or
sale would be unlawful prior to registration or qualification under
the securities laws of any such state. Prospective purchasers are
referred to the final prospectus and prospectus supplement relating
to the securities discussed in this communication for definitive
Computational Materials on any matter discussed in this
communication. The information contained in these Computational
Materials will be superseded by the description of the mortgage
loans and the other information contained in the final prospectus
supplement and prospectus relating to the securities discussed in
this communication. A final prospectus and prospectus supplement
may be obtained by contacting the Xxxxxxx Xxxxx Trading Desk at
(000) 000-0000.
Please be advised that asset-backed securities may not be
appropriate for all investors. Potential investors must be willing
to assume, among other things, market price volatility,
prepayments, yield curve and interest rate risk. Investors should
fully consider the risk of an investment in these securities.
If you have received this communication in error, please notify the
sending party immediately by telephone and return the original to
such party by mail."
(ii) In the case of Collateral Term Sheets, such legend shall
also include a statement in substantially the following form:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY
THE DESCRIPTION OF THE COLLATERAL POOL CONTAINED IN THE
PROSPECTUS SUPPLEMENT RELATING TO THE SECURITIES AND
SUPERSEDES ALL INFORMATION CONTAINED IN ANY COLLATERAL
TERM SHEETS RELATING TO THE COLLATERAL POOL PREVIOUSLY
PROVIDED BY XXXXXXX XXXXX."
Notwithstanding the foregoing legends, this subsection (d) shall be
satisfied if all Computational Materials, Structural Term Sheets and
Collateral Term Sheets bear a legend in a form or forms previously
approved in writing by the Company.
(e) The Company shall not be obligated to file any Computational
Materials or Structural Term Sheets that have been determined to contain
any material errors or omissions; provided, however, that, at the
request of the Underwriter, the Company shall file Computational
Materials or Structural Term Sheets containing material errors or
omissions if clearly marked "superseded by materials dated ____________"
and accompanied by corrected Computational Materials or Structural Term
Sheets that are marked "these materials supersede and correct the
materials dated ____________."
SECTION 5. Conditions of Underwriters' Obligations. The
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obligations of the Underwriters to purchase Certificates pursuant to any
Terms Agreement are subject to the accuracy of the representations and
warranties on the part of the Company herein contained, to the accuracy of
the statements of the Company's officers made pursuant hereto, to the
performance by the Company of all of its obligations hereunder and to the
following further conditions:
(a) At the applicable Closing Time (i) no stop order suspending
the effectiveness of the Registration Statement shall have been issued
or proceedings therefor initiated or threatened by the Commission, (ii)
the Certificates shall have received the rating or ratings specified in
the applicable Terms Agreement, and (iii) there shall not have come to
your attention any facts that would cause you to believe that the
Prospectus at the time it was required to be delivered to a purchaser of
the Certificates, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at such time,
not misleading.
(b) At the applicable Closing Time, you shall have received:
(1) The favorable opinion, dated as of the applicable Closing
Time, of Xxxxx & Wood LLP, special counsel to the Company, in form
and substance satisfactory to such of you as may be named in the
applicable Terms Agreement, to the effect that:
(i) The Company is validly existing as a corporation in
good standing under the laws of the State of Delaware.
(ii) The Company has the corporate power and corporate
authority to carry on its business as described in the
Prospectus and to own and operate its properties in connection
therewith.
(iii) This Agreement has been duly authorized, executed
and delivered by the Company.
(iv) The applicable Pooling and Servicing Agreement has
been duly authorized, executed and delivered by the Company
and is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except that (A) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights
generally and (B) such enforcement may be limited by general
principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law).
(v) The execution and delivery by the Company of this
Agreement and the applicable Pooling and Servicing Agreement
and the signing of the Registration Statement by the Company
are within the corporate power of the Company and have been
duly authorized by all necessary corporate action on the part
of the Company; and neither the issue and sale of the
Certificates, nor the consummation of the transactions
contemplated in this Agreement nor the fulfillment of the
terms of such Underwriting Agreements will result in any
violation of the provisions of the certificate of
incorporation or by-laws of the Company or, to the best of
such counsel's knowledge, any New York or federal law,
administrative regulation or administrative or court decree
applicable to the Company.
(vi) The Certificates have been duly authorized by the
Company and, when executed and authenticated as specified in
the applicable Pooling and Servicing Agreement and delivered
and paid for pursuant to this Agreement and the Sale
Agreement, will be duly issued and entitled to the benefits of
such Pooling and Servicing Agreement.
(vii) To the best of such counsel's knowledge, no filing
or registration with or notice to or consent, approval,
authorization or order of any New York or federal court or
governmental authority or agency is required for the
consummation by the Company of the transactions contemplated
by this Agreement, except such as may be required under the
1933 Act, the Regulations, state securities or Blue Sky laws.
(viii) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission.
(ix) The applicable Pooling and Servicing Agreement is
not required to be qualified under the Trust Indenture Act of
1939, as amended.
(x) To the best of such counsel's knowledge, there are
no contracts or documents of the Company which are required to
be filed as exhibits to the Registration Statement pursuant to
the 1933 Act or the Regulations thereunder which have not been
so filed.
(xi) The statements in the Prospectus under the heading
"Certain Federal Income Tax Consequences," to the extent that
they constitute matters of law or legal conclusions with
respect thereto, have been prepared or reviewed by such
counsel and are correct in all material respects.
(xii) The Trust Fund created by the applicable Pooling and
Servicing Agreement is not required to register as an
"investment company" under the Investment Company Act of 1940,
as amended.
(xiii) The statements in the Prospectus under the caption
"Description of the Certificates," insofar as such statements
purport to summarize certain terms of the Certificates and the
applicable Pooling and Servicing Agreement, constitute a fair
summary of such documents in all material respects.
(xiv) The Registration Statement, as of the date it
becomes effective, and the Prospectus, as of the date thereof
(other than, in each case, the financial statements and other
financial, statistical and numerical information included
therein, as to which no opinion is rendered), complied as to
form in all material respects with the requirements of the
1933 Act and the Regulations thereunder.
(xv) Based solely upon the representations of the Master
Servicer in the applicable Pooling and Servicing Agreement,
the Class A Certificates will be mortgage related securities,
as defined in Section 3(a)(41) of the Securities Exchange Act
of 1934, as amended, so long as such Certificates are rated in
one of the two highest grades by at least one nationally
recognized statistical rating organization.
(xvi) Based solely upon the representations and warranties
of the Master Servicer in the applicable Pooling and Servicing
Agreement and assuming compliance with the pertinent
provisions of such Pooling and Servicing Agreement, as of the
date of such opinion, under existing law, the Trust Fund will
qualify as a real estate mortgage investment conduit (a
"REMIC") under the Internal Revenue Code of 1986, as amended,
the Class A and the Class B Certificates will be treated as
"regular interests" in such REMIC and the Class R Certificates
will be treated as the single class of "residual interests" in
such REMIC.
(xvii) In reliance upon the representations and warranties
of the Master Servicer in the applicable Pooling and Servicing
Agreement and assuming the compliance with all of the
provisions of such Pooling and Servicing Agreement, as of the
date of such opinion (a) the Trust Fund will qualify for
treatment as a REMIC under Sections 24870 and 24871 of the
California Revenue and Taxation Code (the "California Code")
such that it will not be subject to California state income or
franchise taxes other than the minimum tax imposed on a REMIC
under Section 24872 of the California Code and (b) holders of
the Class A and Class B Certificates will be treated as holders
of "regular interests" in such REMIC and holders of the Class R
Certificates will be treated as holders of the single class of
"residual interests" in such REMIC under the California Code.
Such counsel shall deliver to you such additional opinions addressing
the transfer by the Company to the Trustee of its right, title and interest
in and to the Mortgage Loans and other property included in the Trust Fund on
the Closing Time as may be required by each Rating Agency rating the
Certificates.
Such counsel shall state that it has participated in conferences with
officers and other representatives of the Company, your counsel,
representatives of the independent accountants for the Company and you at
which the contents of the Registration Statement and the Prospectus were
discussed and, although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except
as stated in paragraphs (xii) and (xiv) above) and has made no independent
check or verification thereof for the purpose of rendering this opinion, on
the basis of the foregoing (relying as to materiality to a large extent upon
the certificates of officers and other representatives of the Company),
nothing has come to their attention that leads such counsel to believe that
either the Registration Statement, at the time it became effective, or the
Prospectus at the time the Prospectus was delivered to you contained or at
the closing time, contains an untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that such counsel need express no view with respect to the financial
statements, schedules and other financial and statistical data included in or
incorporated by reference into the Registration Statement or the Prospectus.
Said counsel may state that they are admitted to practice only in the
State of New York, that they are not admitted to the Bar in any other State
and are not experts in the law of any other State and to the extent that the
foregoing opinions concern the laws of any other State such counsel may rely
upon the opinion of counsel satisfactory to the Underwriters and admitted to
practice in such jurisdiction. Any opinions relied upon by such counsel as
aforesaid shall be addressed to the Underwriters and shall be delivered
together with the opinion of such counsel, which shall state that such
counsel believes that their reliance thereon is justified.
(2) The favorable opinion of counsel to the Trustee,
dated as of the applicable Closing Time,
addressed to you and in form and scope satisfactory to your
counsel, to the effect that:
(i) Trustee is a national banking association with trust
powers, duly organized and validly existing in good standing
under the laws of the United States of America, and has all
requisite power and authority to enter into the Agreement and
perform the obligations of Trustee.
(ii) The applicable Pooling and Servicing Agreement has
been duly authorized, executed, and delivered by Trustee, and
constitutes the legal, valid, and binding obligation of
Trustee enforceable against Trustee in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy and insolvency laws and other similar laws
affecting the enforcement of creditors' rights generally and
by general equity principles.
In rendering such opinion, such counsel may rely, as to matters of
fact, to the extent deemed proper and stated therein, on certificates of
responsible officers of the Trustee or public officials.
(3) The favorable opinion of counsel to the Master
Servicer, dated as of the applicable Closing Time, addressed to you
and in form and scope satisfactory to your counsel, to the effect
that:
(i) The Master Servicer has been duly organized and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation and is duly
qualified to do business, and is in good standing, as a
foreign corporation under the laws of each jurisdiction in
which the performance of its duties under the applicable
Pooling and Servicing Agreement would require such
qualification.
(ii) The execution and delivery by the Master Servicer of
the applicable Pooling and Servicing Agreement is within the
corporate power of the Master Servicer and has been duly
authorized by all necessary corporate action on the part of
the Master Servicer; and neither the execution and delivery of
such instrument, nor the consummation of the transactions
provided for therein, nor compliance with the provision
thereof, will conflict with or constitute a breach of, or
default under, any contract, indenture, mortgage, loan
agreement, note, lease, deed of trust, or other instrument to
which the Master Servicer is a party or by which it may be
bound, nor will such action result in any violation of the
provisions of the charter or by-laws of the Master Servicer or
any law, administrative regulation or administrative or court
decree.
(iii) The applicable Pooling and Servicing Agreement has
been duly executed and delivered by the Master Servicer and
constitute a valid and binding obligation of the Master
Servicer enforceable against the Master Servicer in accordance
with its terms, except that such enforceability thereof may be
subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally and subject as to enforceability, to general prin-
ciples of equity (regardless whether enforcement is sought in
a proceeding in equity or at law).
(iv) The execution, delivery and performance by the
Master Servicer of the applicable Pooling and Servicing
Agreement do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of
any other action in respect of any federal, state or other
governmental agency or authority which has not previously been
effected.
(v) The description of the Master Servicer in the
Prospectus and the Prospectus Supplement is true and correct
in all material respects.
(4) The favorable opinion of counsel to the Guarantor,
if any, which counsel may be counsel to the Company, dated as of
the applicable Closing Time, addressed to you and in form and scope
satisfactory to your counsel, to the effect that:
(i) The Guarantor, if any, is validly existing and in
good standing under the laws of the jurisdiction of its
incorporation with the corporate power to execute, deliver and
perform the applicable Guaranty.
(ii) The applicable Guaranty has been duly authorized,
executed and delivered by the applicable Guarantor and is a
valid and binding agreement of the Guarantor enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other
similar laws affecting creditor's rights generally and as to
enforceability general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(5) The favorable opinion of counsel to each Mortgage
Pool Insurer, Special Hazard Insurer and Mortgagor Bankruptcy
Insurer, if any, named in each applicable Insurance Policy, dated
as of the applicable Closing Time, addressed to you and in form and
scope satisfactory to your counsel, to the effect that:
(i) Such Insurer is a stock insurance company, duly
organized, validly existing and holding a current certificate
of authority to transact insurance business under the laws of
the jurisdiction of its incorporation, is duly qualified to do
business in all jurisdictions where the nature of its opera-
tions as contemplated by the Insurance Policy legally require
such qualification, and has the power and authority (corporate
and other) to issue, and to take all action required of it
under, the Insurance Policy.
(ii) The execution, delivery and performance by such
Insurer of the Insurance policy have been duly authorized by
all necessary corporate action on the part of the Insurer, and
under present law do not and will not contravene any law or
governmental regulation or order presently binding on such
Insurer or the charter or the by-laws of such Insurer or
contravene any provision of or constitute a default under any
indenture, contract or other instrument to which the Insurer
is a party or by which such Insurer is bound.
(iii) The execution, delivery and performance by such
Insurer of the Insurance Policy do not require the consent or
approval of, the giving of notice to, the registration with,
or the taking of any other action in respect of any federal,
state or other governmental agency or authority which has not
previously been effected.
(iv) The Insurance Policy has been duly issued by such
Insurer and constitutes the valid and binding agreement of
such Insurer, enforceable against the Insurer in accordance
with its terms, except that such enforceability thereof
subject to (A) bankruptcy, insolvency, reorganization, xxxx-
torium or other similar laws now or hereafter in
effect relating to creditors' rights and (B) general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or
law).
(v) Except for changes, if any, approved by you, the
Insurance Policy conforms in all material respects to the
description thereof in the Prospectus under the captions
"Description of the Certificates -- Maintenance of Insurance
Policies and Other Servicing Procedures" and "Description of
Insurance" and in the applicable Prospectus Supplement under
the caption "Insurance." To the extent required by applicable
legal requirements, the Insurance Policy form has been filed
with, and approved by, all governmental authorities having
jurisdiction over the Insurer in connection with such policy.
(6) The favorable opinion of counsel to each provider of
Alternate Credit Enhancement, if any, named in a Prospectus
Supplement, dated as of the applicable Closing Time, addressed to
you and in form and scope satisfactory to your counsel, to the
effect that:
(i) Such provider of Alternate Credit Enhancement has
been duly organized and is validly existing as a corporation
under the laws of the jurisdiction of its incorporation, is
duly qualified to do business in all jurisdictions where the
nature of its operations as contemplated by the Alternate
Credit Enhancement legally requires such qualification, and
has the power and authority (corporate and other) to issue,
and to take all action required of it under, the Alternate
Credit Enhancement.
(ii) The execution, delivery and performance by such
provider of Alternate Credit Enhancement of the Alternate
Credit Enhancement have been duly authorized by all necessary
corporate action on the part of the provider of Alternate
Credit Enhancement, and under present law do not and will not
contravene any law or governmental regulation or order
presently binding on such provider of Alternate Credit
Enhancement or the charter of the by-laws of such provider of
Alternate Credit Enhancement or contravene any provision of or
constitute a default under any indenture, contract or other
instrument to which the provider of Alternate Credit
Enhancement is a party or by which such provider of Alternate
Credit Enhancement is bound.
(iii) The execution, delivery and performance by such
provider of Alternate Credit Enhancement of the Alternate
Credit Enhancement do not require the consent or approval of,
the giving of notice to, the registration with, or the taking
of any other action in respect of any federal, state or other
governmental agency or authority which has not previously been
effected.
(iv) The Alternate Credit Enhancement has been duly
issued by such provider of Alternate Credit Enhancement and
constitutes the valid and binding agreement of such provider
of Alternate Credit Enhancement, enforceable against the pro-
vider of Alternate Credit Enhancement in accordance with its
terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
creditors' rights generally and subject as to enforceability
to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(v) The Alternate Credit Enhancement conforms in all
material respects to the description thereof in the applicable
Prospectus Supplement under the caption "Insurance Alternate
Credit Enhancement." To the extent required by applicable
legal requirements, the Alternate Credit Enhancement form has
been filed with, and approved by, all governmental authorities
having jurisdiction over the provider of Alternate Credit
Enhancement in connection with such Alternate Credit
Enhancement.
(7) To the extent specified in the applicable Terms
Agreement, if any of the Mortgage Loans constituting a portion of
the Trust Fund with respect to a Series have been or are being
purchased by the Company from a third party (other than any such
Mortgage Loans acquired by Xxxxxxx Xxxxx Credit Corporation in the
course of its correspondent lending activities and thereafter sold
to the Company), the favorable opinion of counsel to such third
party, dated as of the applicable Closing Time, addressed to you
and in form and scope satisfactory to your counsel to the effect
that the security interest of the Trustee in the Mortgage Notes and
the related Mortgages included in the Trust Fund will be perfected,
with respect to (i) the Mortgage Note, upon delivery thereof to the
Trustee and will constitute a perfected first priority interest
therein, and (ii) the Mortgages, upon delivery to the Trustee of
instruments of assignment in recordable form assigning each Mortgage
to the Trustee and, if such counsel so indicates in such opinion, the
recording of each such instrument of assignment in the appropriate
recording office in which the Mortgaged Property is located, and
will constitute a perfected first priority security interest
therein. Such counsel shall deliver to you such additional
opinions addressing the transfer of the Mortgage Loans from the
third party to the Company as may be required by each Rating Agency
rating the Certificates.
(8) The favorable opinion or opinions, dated as of the
applicable Closing Time, of counsel for the Underwriters, with
respect to the issue and sale of the Certificates, the Registration
Statement, this Agreement, the applicable Terms Agreement, the
Prospectus, the applicable Prospectus Supplement and other related
matters as the Underwriters may require.
(c) At the applicable Closing Time you shall have received a
certificate of an Assistant Vice President (or more senior officer) of
the Company, dated as of such Closing Time, to the effect that the
representations and warranties of the Company contained in Section 1 are
true and correct with the same force and effect as though such Closing
Time were a Representation Date.
(d) You shall have received from independent certified public
accountants acceptable to you, a letter, dated as of the date of the
applicable Terms Agreement and as of the applicable Closing Time,
delivered at such times, in the form heretofore agreed to.
(e) At the applicable Closing Time, with respect to a Series of
Certificates, each of the representations and warranties of the Master
Servicer set forth in the related Pooling and Servicing Agreement will
be true and correct.
(f) At the applicable Closing Time, with respect to a Series of
Certificates, the Reserve Fund shall be established by the Company with
the Trustee as contemplated by the related Pooling and Servicing
Agreement.
(g) At the applicable Closing Time, with respect to a Series of
Certificates, the Certificates shall have received the certificate
rating or ratings specified in the related Terms Agreement.
(h) At the applicable Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Certificates as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of any
of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Certificates as herein
contemplated shall be satisfactory in form and substance to you and
counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms
Agreement may be terminated by you by notice to the Company at any time at or
prior to the Applicable Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 6.
SECTION 6. Payment of Expenses. The Company will pay all
-------------------
expenses incident to the performance of its obligations under this Agreement
and any Terms Agreement, including without limitation those related to (i)
the filing of the Registration Statement and all amendments thereto, (ii) the
printing and delivery to the Underwriters, in such quantities as you may
reasonably request, of copies of this Agreement, each Terms Agreement, any
agreements among Underwriters, the Memorandum and any selling agreements and
Underwriters' questionnaires and powers of attorney, (iii) the preparation,
issuance and delivery of the Certificates to the Underwriters, (iv) the fees
and disbursements of the Company's counsel and accountants, (v) the
qualification of the Certificates under Securities and Blue Sky laws and the
determination of the eligibility of the Certificates for investment in
accordance with the provisions of Section 3(f), including filing fees, and
the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky Survey and
Legal Investment Survey, (vi) the printing and delivery to the Underwriters,
in such quantities as you may reasonably request, hereinabove stated, of
copies of the Registration Statement, and Prospectus and all amendments and
Supplements thereto, and of any Blue Sky Survey and Legal Investment Survey,
(vii) the printing and delivery to the Underwriter, in such quantities as you
may reasonably request, of copies of each Pooling and Servicing Agreement,
(viii) the fees charged by investment rating agencies for rating the
Certificates, (ix) the fee and expenses, if any, incurred in connection with
the listing of the Certificates on any national securities exchange, (x) any
fees and expenses incurred with respect to the National Association of
Securities Dealers, Inc., including the fees and disbursements of counsel for
the Underwriters in connection therewith and (xi) the fees
and expenses of the Trustee and its counsel. The cost of the accountant's
comfort letter referred to in Section 3(g) will be an expense of the
Underwriter.
If a Terms Agreement is terminated by you in accordance with the
provisions of Section 5 or Section 10(i), the Company shall reimburse you for
all reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 7. Indemnification.
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(a) The Company agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls the Underwriters within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, unless (A) such untrue
statement or omission or alleged untrue statement or omission was made
in reliance upon and in conformity with written information furnished to
the Company by the Underwriters expressly for use in the Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment
or supplement thereto) or (B) such untrue statement or omission or
alleged untrue statement or omission relates to information in any
Computational Materials or Structural Term Sheets provided by the
Underwriter to the Company pursuant to Section 4 (except to the extent
that any untrue statements or errors contained therein are based on or
constitute Pool Information);
(ii) against any and all loss, liability, claim, damage
and expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency, or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including
the fees and disbursements of counsel chosen by you) reasonably incurred
in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have. Insofar as this indemnity may permit
indemnification for liabilities under the 1933 Act of any person who is a
partner of the Underwriter entitled to indemnity hereby or who controls the
Underwriters within the meaning of Section 15 of the 1933 Act and who, at the
date of this Agreement, is a director, officer or controlling person of the
Company, such indemnity agreement is subject to the undertaking of the
Company in the Registration Statement.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of the Company's directors, each of the Company's
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, but only with respect
to (i) untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or
any Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by the
Underwriters expressly for use in the Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto)
or (ii) information in any Computational Materials or Structural Term Sheets
provided by the Underwriter to the Company pursuant to Section 4 (except to
the extent that any untrue statements or errors contained therein are based
on or constitute Pool Information). This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise have.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it with respect to which
indemnity may be sought hereunder but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action. In no event
shall the indemnifying parties be liable for the fees and expenses of more
than one counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 8. Contribution. In order to provide for just and
------------
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 7 is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company on the one hand, and the Underwriters, on the other, shall contribute
to the aggregate losses, liabilities, claims, damages and expenses of the
nature contemplated by said indemnity agreement incurred by the Company and
one or more of the Underwriters in such proportions that the Underwriters are
responsible for that portion represented by the underwriting compensation
earned by them bears to the initial public offering price or prices and the
Company shall be responsible for the balance; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section, each person, if any, who controls the Underwriters within the
meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Underwriters and each director of the Company, such
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as the Company.
SECTION 9. Representations, Warranties, and Agreements to
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Survive Delivery. All representations, warranties and agreements
----------------
contained in this Agreement, or contained in certificates of officers of the
Company submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any termination of this Agreement, or any
investigation made by or on behalf of the Underwriters or controlling person
thereof, or by or on behalf of the Company and shall survive delivery of any
Certificates to the Underwriters.
SECTION 10. Termination of Agreement. This Agreement may be
------------------------
terminated for any reason at any time by either the Company or you upon the
giving of thirty days' notice of such termination to the other party hereto.
You, as Representative of the Underwriters named in any Terms Agreement, may
also terminate such Terms Agreement, immediately upon notice to the Company,
at any time at or prior to the applicable Closing Time (i) if there has been,
since the date of such Terms Agreement or since the respective dates as of
which information is given in the Registration Statement or Prospectus any
change, or any development involving a prospective change, in or affecting
the condition, financial or otherwise, earnings, affairs or business of the
Company, whether or not arising in the ordinary course of business, which in
your judgment would materially impair the market
for, or the investment quality of, the Certificates to be purchased pursuant
to such Terms Agreement, or (ii) if there has occurred any outbreak of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in your judgment,
impracticable to market such Certificates or enforce contracts for the sale
of such Certificates, or (iii) if trading generally on either the New York
Stock Exchange or the American Stock Exchange has been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices
for securities have been required, by either of said exchanges or by order of
the Commission or any other governmental authority, or if a banking morato-
rium has been declared by either Federal or New York authorities. In the
event of any such termination, (A) the covenants set forth in Section 3 with
respect to any offering of such Certificates shall remain in effect so long
as the Underwriters own any such Certificates purchased from the Company
pursuant to the applicable Terms Agreement and (B) the covenant set forth in
Section 3(c), the provisions of Section 6, the indemnity agreement set forth
in Section 7, the contribution provisions set forth in Section 8, and the
provisions of Section 9 and 14 shall remain in effect.
SECTION 11. Default by One or More of the Underwriters. If one
------------------------------------------
or more of the Underwriters participating in an offering of Certificates
shall fail at the applicable Closing Time to purchase the Certificates which
it or they are obligated to purchase hereunder and under the applicable Terms
Agreement (the "Defaulted Certificates"), then such of you as are named
therein shall have the right, within 24 hours thereafter, to make ar-
rangements for one or more of the non-defaulting Underwriters, or any other
Underwriters, to purchase all, but not less than all, of the Defaulted
Certificates in such amounts as may be agreed upon and upon the terms herein
set forth. If, however, you have not completed such arrangements within such
24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Certificates does not exceed 10% of the aggregate principal amount of
the Certificates to be purchased pursuant to such Terms Agreement, the
non-defaulting Underwriters named in such Terms Agreement shall be
obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all such non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted
Certificates exceeds 10% of the aggregate principal amount of the
Certificates to be purchased pursuant to such Terms Agreement, the
applicable Terms Agreement shall terminate, without any liability on the
part of any non-defaulting Underwriters.
No action taken pursuant to this Section shall relieve any defaulting
Underwriters from liability with respect to any default of such Underwriters
under this Agreement and the applicable Terms Agreement.
In the event of a default by any Underwriters as set forth in this
Section, either you or the Company shall have the right to postpone the
applicable Closing Time for a period of time not exceeding seven days in
order that any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements may be effected.
SECTION 12. Notices. All notices and other communications
-------
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Underwriters shall be directed to you at the address set forth on the
first page hereof, attention Syndicate Department. Notices to the Company
shall be directed to MLCC Mortgage Investors, Inc., 0000 Xxxx Xxxx Xxxxx
Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, attention of the General Counsel.
SECTION 13. Parties. This Agreement shall inure to the benefit
-------
of and be binding upon you and the Company and any Terms Agreement shall
inure to the benefit of and be binding upon the Company and any Underwriters
who become a party to any Terms Agreement, and their respective successors.
Nothing expressed or mentioned in this Agreement or any Terms Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto or thereto and their respective successors and the
controlling person and officers and directors referred to in Sections 7 and 8
and their heirs and legal representatives any legal or equitable right,
remedy or claim under or with respect to this Agreement or any Terms
Agreement or any provision herein or therein contained. This Agreement and
any Terms Agreement and all conditions and provisions hereof or thereof are
intended to be for the sole and exclusive benefit of the parties and their
respective successors and their heirs and legal representative (to the extent
of their rights as specified herein and therein) and for the benefit of no
other person, firm or corporation. No purchaser of Certificates from any
Underwriters shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. Governing Law and Time. This Agreement and each
----------------------
Terms Agreement shall be governed by the laws of the State of New York.
Specified times of day refer to New York City time.
SECTION 15. Counterparts. This Agreement and any Terms
------------
Agreement may be executed in counterparts, each of which
shall constitute an original of any party whose signature appears on it, and
all of which shall together constitute a single instrument.
* * *
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement
between you and the Company in accordance with its terms.
Very truly yours,
MLCC MORTGAGE INVESTORS, INC.
By------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By____________________________
Name:
Title:
Exhibit A
MLCC MORTGAGE INVESTORS, INC.
MORTGAGE LOAN ASSET BACKED PASS-THROUGH
CERTIFICATES, SERIES 199_____
TERMS AGREEMENT
---------------
Dated: _____________, 199_
To: MLCC Mortgage Investors, Inc., as Seller (the "Seller") under the
Pooling and Servicing Agreement to be dated as of _____________,
199_ (the "Agreement").
Re: Underwriting Agreement dated ____________, 199_.
Series Designation: MLCC Mortgage Investors, Inc., Mortgage Loan Asset
------------------
Backed Pass-Through Certificates, Series 199_-_.
Terms of the Certificates and Underwriting Compensation:
-------------------------------------------------------
Class (1) Original Pass-Through Price to
Principal Rate Public
Amount ______________ ____________
-----------
$__________* ** ***
_________________________
(1) The Class __ Certificates are the Offered Certificates. The Class __
Certificate is subordinate to the Offered Certificates.
* Approximate. Subject to permitted variance of plus or minus 5%.
** Subject to the more precise formulation described in the Prospectus (as
defined below).
*** The Class __ Certificates are being offered by the Underwriter from time
to time in negotiated transactions or otherwise at varying prices to be
determined, in each case, at the time of sale.
Xxxxx'x Standard &
Certificate Investors Poor's Ratings
-------------
Rating Service Services
----------- --------- --------------
REMIC Election:
--------------
The Seller intends to cause the Trust Fund (exclusive of the security
interest in the Additional Collateral) to elect to be treated as a REMIC as
described in the Prospectus dated ___________, 199_ and the Prospectus
Supplement relating to the Class __ Certificates, dated ____________, 199_
(together, the "Prospectus").
Trust Fund:
----------
As described in the Prospectus.
Credit Enhancement:
------------------
Payments on the Class __ Certificates will be supported by (a limited
purpose surety bond), (a certificate insurance policy), (subordinate
class(es)) and (by overcollateralization), as described in the Prospectus.
Cut-off Date:
------------
___________, 199_.
Distribution Date:
-----------------
The 15th day of each month or, if such day is not a Business Day, the
first Business Day thereafter, commencing in _____ 199.
Purchase Price:
--------------
The purchase price payable by the Underwriter for the Class __
Certificates is a percentage of the principal amount of such Class, as
follows:
Principal of
Class Amount Principal
$ % *
* The Class __ Certificates are being offered by the Underwriter from
time to time in negotiated transactions or otherwise at varying prices
to be determined, in each case, at the time of sale.
The undersigned represents and agrees that (i) it has not offered or
sold and, prior to the expiration of the period of six months from the
Closing Date referred to below, will not offer or sell any Class __
Certificates to persons in the United Kingdom, except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their businesses
or otherwise in circumstances that have not resulted and will not result in
an offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulation 1995; (ii) it has complied and will comply
with all applicable provisions of the Financial Services Xxx 0000 with
respect to anything done by it in relation to the Class __ Certificates in,
from or otherwise involving the United Kingdom; and (iii) it has only issued
or passed on and will only issue or pass on in the United Kingdom any
documents received by it in connection with the issue of the Class __
Certificates to a person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements)(Exemptions) Order
1995, or is a person to whom such document may otherwise lawfully be issued
or passed on.
* * *
Closing Date and Location:
-------------------------
_____________, 199_ at the offices of Xxxxx & Xxxx LLP, Xxx Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:_____________________________
Name:
Title:
ACCEPTED:
MLCC MORTGAGE INVESTORS, INC.
By:__________________________
Name:
Title:
