EXHIBIT 1.1
ORIGEN RESIDENTIAL SECURITIES, INC.
[RESIDENTIAL PASS-THROUGH CERTIFICATES]
[COLLATERALIZED NOTES]
FORM OF UNDERWRITING AGREEMENT
[Date]
[UNDERWRITERS' REPRESENTATIVE]
as Representative of the several Underwriters
[Address]
Dear Ladies and Gentlemen:
ORIGEN RESIDENTIAL SECURITIES, INC., a Delaware corporation (the
"COMPANY"), confirms its agreement with each of the Underwriters listed on
Schedule I hereto (collectively, the "UNDERWRITERS"), for whom
[________________] is acting as representative (in such capacity, the
"REPRESENTATIVE"), with respect to the sale by the Company of the [Residential
Pass-Through Certificates] [Collateralized Notes], Series 20__-__, Classes
________________ (collectively, the "OFFERED SECURITIES"), issued by Origen
Manufactured Housing Contract Trust [20__-_] as described in detail in Schedule
II hereto, and the purchase by the Underwriters, acting severally and not
jointly, of the respective Offered Securities set forth opposite the names of
the Underwriters in Schedule II hereto.
The Company understands that the Underwriters propose to make a public
offering of the Offered Securities as soon as the Underwriters deem advisable
after this Underwriting Agreement (the "AGREEMENT") has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION"), a registration statement on Form S-3 (No. 333-________) and a
related preliminary prospectus for the registration of the Offered Securities
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), and the
rules and regulations thereunder (the "SECURITIES ACT REGULATIONS"). The Company
has prepared and filed such amendments thereto, if any, and such amended
preliminary prospectuses, if any, as may have been required to the date hereof,
and will file such additional amendments thereto and such amended prospectuses
as may hereafter be required. The registration statement has been declared
effective under the Securities Act by the Commission. The registration statement
as amended at the time it became effective (including all information deemed
(whether by incorporation by reference or otherwise) to be a part of the
registration statement at the time it became effective pursuant to Rule 430A(b)
of the Securities Act Regulations) is hereinafter called the "REGISTRATION
STATEMENT," except that, if the Company files a post-effective amendment to such
registration statement which becomes effective prior to the Closing Time (as
defined below), "Registration Statement" shall refer to such registration
statement as so amended. [Any registration statement filed pursuant to Rule
462(b) of the Securities Act Regulations is hereinafter called the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the 462(b) Registration Statement.] The Company proposes to file
with the Commission pursuant to Rule
424, under the Securities Act, a supplement, dated the date specified on
Schedule III hereto, to the prospectus dated ____________, relating to the
Offered Securities and the method of distribution thereof. The term "Base
Prospectus" means the prospectus included in the Registration Statement; the
term "Preliminary Prospectus" means any preliminary form of the Prospectus (as
defined herein) specifically relating to the Offered Securities, in the form
first filed with, or transmitted for filing to, the Commission pursuant to Rule
424 of the Securities Act Regulations; the term "Prospectus Supplement" means
any prospectus supplement specifically relating to the Offered Securities, in
the form first filed with, or transmitted for filing to, the Commission pursuant
to Rule 424 under the Securities Act; the term "Prospectus" means the Base
Prospectus, including, in each case, the Prospectus Supplement. Each prospectus
included in the Registration Statement, or amendments thereof or supplements
thereto, before it became effective under the Securities Act and any prospectus
filed with the Commission by the Company with the consent of the Underwriters
pursuant to Rule 424(a) of the Securities Act Regulations is hereinafter called
the "Preliminary Prospectus." The term "Prospectus" means the final prospectus,
as first filed with the Commission pursuant to Rule 424(b) of the Securities Act
Regulations, and any amendments thereof or supplements thereto. The Commission
has not issued any order preventing or suspending the use of any Preliminary
Prospectus.
The Company and the Underwriters agree as follows:
1. Sale and Purchase.
Upon the basis of the warranties and representations and other terms and
conditions herein set forth, the Company agrees to sell to the Underwriters and
each Underwriter agrees, severally and not jointly, to purchase from the Company
the respective actual or notional, as the case may be, amounts or percentage
interests set forth in Schedule II opposite such Underwriter's name, plus any
additional amounts or percentage interests which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 9 hereof, subject in
each case, to such adjustments among the Underwriters as the Representative in
its sole discretion shall make to eliminate any sales or purchases of fractional
securities.
2. Payment and Delivery.
The Offered Securities to be purchased by each Underwriter hereunder, in
book entry form, and in such authorized denominations and registered in such
names as the Representative and shall be delivered by or on behalf of the
Company to the Representative through the facilities of The Depository Trust
Company ("DTC") for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefore by wire transfer of
Federal (same-day) funds to the account specified to the Representative by the
Company upon at least forty-eight hours' prior notice. The Company will cause
the certificates representing the Offered Securities to be made available for
checking and packaging at least twenty-four hours prior to the Closing Time (as
defined below) with respect thereto at the office of the Representative,
[______________________], or at the office of DTC or its designated custodian,
as the case may be (the "DESIGNATED OFFICE"). The time and date of such delivery
and payment shall be 9:30 a.m., New York City time, on the third (fourth, if
pricing occurs after 4:30 p.m., New York City time) business day after the date
hereof (unless another time and date shall be
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agreed to by the Representative and the Company). The time and date at which
such payment and delivery are actually made is hereinafter sometimes called the
"Closing Time."
3. Offering by Underwriters.
(a) It is understood that the several Underwriters propose to offer
the Offered Securities for sale to the public as set forth in the Prospectus.
(b) It is understood that the Underwriters will solicit offers to
purchase the Offered Securities only as follows: prior to the time the
Underwriters have received the [INSERT DOCUMENT ON WHICH INVESTORS ARE TO
CONFIRM SALES], the Underwriters may, in compliance with the provisions of this
Agreement, solicit offers to purchase Offered Securities; provided, that the
Underwriters shall not accept any such offer to purchase a Security or any
interest in any Security or otherwise enter into any Contract of Sale for any
Security, any interest in any Security prior to the investor's receipt of
[INSERT DOCUMENT ON WHICH INVESTORS ARE TO CONFIRM SALES].
(c) (b) It is understood that the Underwriters will not enter into a
Contract of Sale with any investor until the investor has received the Approved
Offering Materials with respect to the Offered Securities which are the subject
of such Contract of Sale. For purposes of this Agreement, Contract of Sale has
the same meaning as in Rule 159 of the Rules and Regulations and all Commission
guidance relating to Rule 159, including without limitation the Commission's
statement in Act Release No. 33-8501 that "a contract of sale can occur under
the federal securities laws before there is a bilateral contract under state
law, for example when a purchaser has taken all actions necessary to be bound
but a seller's obligations remain conditional under state law." Each Contract of
Sale for an Offered Security entered into by the Underwriters shall expressly
provide in writing that the Depositor is not obligated to issue such Offered
Security or any similar security and that the obligation of the Underwriters to
deliver such Offered Security is subject to the terms and conditions of this
Agreement and the availability of such Offered Security when, as and if issued
by the Depositor.
(d) It is understood that the Underwriters may provide to prospective
investors certain Issuer Free Writing Prospectuses and prepare and provide to
prospective investors other Free Writing Prospectuses, subject to the following
conditions:
(i) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, the Underwriters shall not convey
or deliver any written communication to any person in connection with the
initial offering of the Offered Securities, unless such "written
communication" (as such term is defined in Rule 405 under the Act) (i) is
made in reliance on Rule 134 under the Act, (ii) constitutes a prospectus
satisfying the requirements of Rule 430B under the Act or (iii) constitutes
a Free Writing Prospectus (as defined below). [The Underwriters shall not
convey or deliver in connection with the initial offering of the Offered
Securities any ABS informational and computation materials (as defined
below), in reliance upon Rules 167 and 426 under the Act.]
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(ii) The Underwriters shall comply with all applicable laws and
regulations in connection with the use of Free Writing Prospectuses,
including but not limited to Rules 164 and 433 of the Rules and Regulations
and all Commission guidance relating to Free Writing Prospectuses,
including but not limited to Commission Release No. 33-8591. For purposes
hereof, "Issuer Information" shall have the meaning given such term in Rule
433 (h) of the Rules and Regulations, including the information specified
in footnote 271 of Commission Release No. 33-8591 and "Derived Information"
shall refer to information of the type described in clause (5) of such
footnote 271 when prepared by the Underwriter. Consistent with such
definition, "Issuer Information" shall not be deemed to include any
information in a Free Writing Prospectus solely by reason of the
Depositor's review of the materials pursuant to subsection (e) below. For
purposes hereof, "ABS Informational and Computational Materials" shall have
the meaning given such term in Item 1101 of Regulation AB.
(e) All Free Writing Prospectuses provided to prospective investors,
whether or not filed with the Commission, shall bear a legend including the
following statement:
"The issuer has filed a registration statement (including a
prospectus) with the SEC for the offering to which this free writing
prospectus relates. Before you invest, you should read the prospectus
in that registration statement and other documents the issuer has
filed with the SEC for more complete information about the issuer and
this offering. You may get these documents for free by visiting XXXXX
on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any
underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling toll-free
1-800-xxx-xxxx.
This free writing prospectus does not contain all information that is
required to be included in the base prospectus and the prospectus
supplement.
The asset-backed securities referred to in this free writing
prospectus are being offered when, as and if issued. In particular,
you are advised that asset-backed securities, and the asset pools
backing them, are subject to modification or revision (including,
among other things, the possibility that one or more classes of
securities may be split, combined or eliminated), at any time prior to
issuance or availability of a final prospectus. As a result, you may
commit to purchase securities that have characteristics that may
change, and you are advised that all or a portion of the securities
may not be issued that have the characteristics described in this free
writing prospectus. Our obligation to sell securities to you is
conditioned on the securities having the characteristics described in
this free writing prospectus. If that condition is not satisfied, we
will notify you, and neither the issuer nor [the] [any] underwriter
will have any obligation to you to deliver all or any portion of the
securities which you have committed to purchase,
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and there will be no liability between us as a consequence of the
non-delivery.
This free writing prospectus is being delivered to you solely to
provide you with information about the offering of the asset-backed
securities referred to in this free writing prospectus and to solicit
an indication of your interest in purchasing such securities, when, as
and if issued. Any such indication of interest will not constitute a
contractual commitment by you to purchase any of the securities."
(f) The Underwriters shall deliver to the Depositor and its counsel,
no later than the business day prior to the proposed date of first use thereof,
any Free Writing Prospectus prepared by or on behalf of the Underwriter that
contains any Issuer Information and request that such Free Writing Prospectus be
filed with the Commission within the time period specified in the Rules and
Regulations.
(g) Each Underwriter represents and warrants to the Depositor that the
Free Writing Prospectuses to be furnished to the Depositor by the Underwriters
pursuant to Section 3(e) above will constitute all Free Writing Prospectuses of
the type required to be delivered pursuant to Section 3(e) that were furnished
to prospective investors of the Offered Securities by the Underwriters in
connection with its offer and sale of the Offered Securities. If the Underwriter
does not provide any Free Writing Prospectuses to the Depositor pursuant to
subsection (e) above, the Underwriter shall be deemed to have represented, as of
the Delivery Date, that it did not provide any prospective investors with any
information in written or electronic form in connection with the offering of the
Offered Securities that is required to be filed with the Commission in
accordance with the Rules and Regulations.
(h) Each Underwriter represents and warrants to the Depositor that
each Free Writing Prospectus required to be provided by it to the Depositor
pursuant to Section 4(e), when viewed together with all other Approved Offering
Materials, did not, as of the Time of Sale, and will not as of the Delivery
Date, include any untrue statement of a material fact or omit any material fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading; provided however, that
the Underwriter makes no representation to the extent such misstatements or
omissions were the result of any inaccurate Issuer Information supplied by the
Depositor or the Seller to the Underwriter prior to the Time of Sale.
(i) Each Underwriter shall file with the Commission any Free Writing
Prospectus that is used or referred to by it and distributed by or on behalf of
the Underwriter in a manner reasonably designed to lead to its broad,
unrestricted dissemination not later than the date of the first use of such Free
Writing Prospectus.
(j) The Underwriters each agree to retain all Free Writing
Prospectuses that they have used and that are not required to be filed pursuant
to this Section 4 for a period of three years following the initial bona fide
offering of the Offered Securities.
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(k) In the event that the Depositor or any Underwriter becomes aware
that, as of the Time of Sale, any Free Writing Prospectus delivered to a
purchaser of a Offered Security contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements contained therein, in the light of the circumstances under which they
were made, not misleading (such Free Writing Prospectus, a "Defective Free
Writing Prospectus"), the Underwriter or the Depositor, as appropriate, shall
notify the other parties to the is Agreement thereof within one business day
after discovery thereof. In connection with the discovery of any Defective Free
Writing Prospectus:
(i) The party responsible for the information to be corrected, if
requested by the Depositor or an Underwriter, as appropriate, shall
prepare a Free Writing Prospectus with Corrective Information that
corrects the material misstatement in or omission from the Defective
Free Writing Prospectus (such corrected Free Writing Prospectus, a
"Corrected Free Writing Prospectus");
(ii) The Underwriters shall deliver the Corrected Free Writing
Prospectus to each purchaser of a Offered Security which received the
Defective Free Writing Prospectus prior to entering into an agreement
to purchase any Offered Securities; and
(iii) The Underwriters shall notify such purchaser in a prominent
fashion that the prior agreement to purchase Offered Securities has
been terminated, and of such purchaser's rights as a result of
termination of such agreement and shall provide such purchaser with an
opportunity to affirmatively agree to purchase such Offered Securities
on the terms described in the Corrected Free Writing Prospectus.
(l) The Representative covenants with the Depositor that after the
final Prospectus is available each of the Underwriters shall not distribute any
written information concerning the Offered Securities to a prospective investor
of Offered Securities unless such information is preceded or accompanied by the
Prospectus or the required notice pursuant to Rule 173 of the Act has been
delivered.
4. Representations and Warranties of the Company.
The Company represents and warrants to the Underwriters that as of the date
hereof and as of the date the Prospectus is first filed pursuant to Rule 424
under the Act, as follows:
(a) the Offered Securities conform in all material respects to the
description thereof contained in the Registration Statement and the Prospectus;
(b) the Company has been duly incorporated and is existing as a
corporation in good standing under and by virtue of the laws of the State of
Delaware, with all requisite corporate power and authority to own, lease and
operate its properties, and conduct its business as described in the
Registration Statement and the Prospectus, and is duly qualified as a foreign
entity to transact business or licensed and is in good standing in each
jurisdiction in which it conducts its business or in which it owns, leases or
operates real property or otherwise maintains
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an office and in which the failure, individually or in the aggregate, to be so
qualified or licensed could have a material adverse effect on the assets,
business, operations, earnings, prospects, properties or condition (financial or
otherwise), present or prospective, of the Company, (any such effect or change,
where the context so requires, is hereinafter called a "MATERIAL ADVERSE EFFECT"
or "MATERIAL ADVERSE CHANGE"); other than as disclosed in the Prospectus, the
Company does not own, directly or indirectly, any capital stock or other equity
securities of any other corporation or any ownership interest in any
partnership, joint venture or other association;
(c) the Company has delivered to the Representative one complete
manually signed copy of the Registration Statement and of each consent and
certificate of experts filed as a part thereof, and conformed copies of the
Registration Statement (without exhibits) and the Preliminary Prospectus, as
amended or supplemented, in such quantities and at such places as the
Representative has reasonably requested for each of the Underwriters;
(d) The Registration Statement and the Prospectus, as of the date of
the Prospectus Supplement, conform, and the Registration Statement as of the
effective date (the "Effective Date") and the Prospectus, as of its date, each
as revised, amended or supplemented and filed with the Commission prior to the
termination of the offering of the Offered Securities, complied in all material
respects to the requirements of the Act and the 1933 Act Regulations, and the
Registration Statement, as of the Effective Date, did not, and as of the Closing
Time, will not, contain any untrue statement of a material fact or and did not
and will not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the Prospectus, as
of the date of the Prospectus Supplement did not, and as of the Closing Time,
will not contain any untrue statement of a material fact and did not and will
not 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 the information contained in the Prospectus or any revision or
amendment thereof or supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by any Underwriter through the
Representative specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement thereto, except to
the extent that such information constitutes Pool Information. As used herein,
"Pool Information" means information with respect to the assumed characteristics
of the Assets and administrative and servicing fees. The Company acknowledges
that the Underwriter Information (as defined herein) constitutes the only
information furnished in writing by you or on your behalf for use in connection
with the preparation of the Registration Statement or the Prospectus Supplement
and the Representative confirms that the Underwriter Information is correct.
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 such rule.
(e) the Company has not distributed and will not distribute, prior to
the completion of the Underwriters' distribution of the Offered Securities, any
offering material in connection with the offering and sale of the Offered
Securities other than a Preliminary Prospectus, the Prospectus or the
Registration Statement;
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(f) the Company is in compliance in all material respects with all
applicable laws, rules, regulations, orders, decrees and judgments, including
those relating to transactions with affiliates;
(g) the Company is not in violation of its Certificate of
Incorporation (as amended or restated, the "Certificate of Incorporation") or
Bylaws, the Company is not in breach of or default in (nor has any event
occurred which with notice, lapse of time, or both would constitute a breach of,
or default in) the performance or observance of any obligation, agreement,
contract, franchise, covenant or condition contained in any license, indenture,
mortgage, deed of trust, loan or credit agreement, lease or other agreement or
instrument to which the Company is a party or by which the Company or its
properties is bound, except for such breaches or defaults which could not have a
Material Adverse Effect;
(h) the execution, delivery and performance of this Agreement, the
issuance, sale and delivery by the Company of the Offered Securities pursuant to
the Prospectus, the Preliminary Prospectus, if any, or the Approved Offering
Materials, and the consummation of the transactions contemplated herein will not
(i) conflict with, or result in any breach or constitute a default (nor
constitute any event which with notice, lapse of time, or both would constitute
a breach or default), (A) by the Company of any provision of the organizational
documents of the Company or (B) of any provision of any obligation, agreement,
contract, franchise, license, indenture, mortgage, deed of trust, loan or credit
agreement, lease or other agreement or instrument to which the Company is a
party or by which the Company or its properties may be bound or affected, or (C)
under any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company, except for such breaches,
defaults, conflicts, liens, charges or encumbrances which could not have a
Material Adverse Effect; or (ii) result in the creation or imposition of any
lien, charge, claim or encumbrance upon any property or asset of the Company;
(i) this Agreement has been duly authorized, executed and delivered by
the Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general equitable principles, and except to
the extent that the indemnification and contribution provisions of Section 10
hereof may be limited by federal or state securities laws and public policy
considerations in respect thereof;
(j) the Company has the full legal right, corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated herein; the Company has the corporate power to issue, sell and
deliver the Offered Securities as provided herein; this Agreement has been duly
authorized, executed and delivered by the Company and is a legal, valid and
binding agreement of the Company enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally, and by general equitable
principles, and except to the extent that the indemnification and contribution
provisions of Section 10 hereof may be limited by federal or state securities
laws and public policy considerations in respect thereof;
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(k) no approval, authorization, consent or order of, or registration
or filing with any federal, state or local governmental or regulatory
commission, board, body, authority or agency is required for the Company's
execution, delivery and performance of this Agreement and by the Prospectus, its
consummation of the transactions contemplated herein, and its sale and delivery
of the Offered Securities, other than (i) such as have been obtained, or will
have been obtained at the Closing Time, under the Securities Act and the
Securities Exchange Act of 1934 (the "EXCHANGE ACT") or from the National
Association of Securities Dealers (the "NASD"), and (ii) any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Offered Securities are being offered by the Underwriters;
(l) the Company has all necessary licenses, authorizations, consents
and approvals, possesses valid and current certificates, has made all necessary
filings required under any federal, state or local law, regulation or rule, and
has obtained all necessary authorizations, consents and approvals from other
persons, required in order to conduct its business as described in the
Prospectus, the Preliminary Prospectus, if any, and any Issuer Free Writing
Prospectus, except to the extent that any failure to have any such licenses,
authorizations, consents or approvals, to make any such filings or to obtain any
such authorizations, consents or approvals could not, individually or in the
aggregate, have a Material Adverse Effect; the Company is not required by any
applicable law to obtain accreditation or certification from any governmental
agency or authority in order to provide the products and services which it
currently provides or which it proposes to provide as set forth in the
Prospectus; the Company is not in violation of, in default under, or has
received any notice regarding a possible violation, default or revocation of any
such certificate, license, authorization, consent or approval or any federal,
state, local or foreign law, regulation or rule or any decree, order or judgment
applicable to the Company the effect of which could result in a Material Adverse
Change; and no such license, authorization, consent or approval contains a
materially burdensome restriction that is not adequately disclosed in the
Registration Statement and the Prospectus;
(m) each of the Registration Statement [and any Rule 462(b)
Registration Statement] have been declared effective under the Securities Act by
the Commission and no stop order suspending the effectiveness of the
Registration Statement [or any Rule 462(b) Registration Statement] has been
issued under the Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the best knowledge of the Company, are
contemplated or threatened by the Commission, and the Company has complied to
the Commission's satisfaction with any request on the part of the Commission for
additional or supplemental information;
(n) the conditions to the use of a registration statement on Form S-3,
and the conditions of Rule 415 under the Securities Act, have been satisfied
with respect to the Registration Statement;
(o) the Preliminary Prospectus and the Registration Statement comply,
and the Prospectus and any further amendments or supplements thereto will, when
they have become effective or are filed with the Commission, as the case may be,
comply, in all material respects with the requirements of the Securities Act and
the Securities Act Regulations; the Registration Statement did not, and any
amendment thereto will not, in each case as of the applicable effective date,
contain an untrue statement of a material fact or omit to state a material fact
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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; and
the Preliminary Prospectus does not, and the Prospectus or any amendment or
supplement thereto will not, as of the applicable filing date and at the Closing
Time, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no warranty or representation with
respect to any statement contained in the Registration Statement or the
Prospectus, or any amendments or supplements thereto, in reliance upon and in
conformity with the information concerning the Underwriters and furnished in
writing by or on behalf of the Underwriters through the Representative to the
Company expressly for use in the Registration Statement or the Prospectus, or
any amendments or supplements thereto (that information being limited to that
described in the penultimate sentence of the first paragraph of Section 10(c)
hereof);
(p) [each document incorporated by reference in the Prospectus, when
it became effective or was filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the Securities Act Regulations and the
Exchange Act Regulations, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;] [and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and the Securities Act Regulations and the Exchange Act
Regulations and will not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading;]
(q) the Preliminary Prospectus was, and the Prospectus delivered to
the Underwriters for use in connection with this offering will be, identical to
the versions of the Preliminary Prospectus and Prospectus created to be
transmitted to the Commission for filing via the Electronic Data Gathering
Analysis and Retrieval System ("XXXXX"), except to the extent permitted by
Regulation S-T;
(r) At or prior to the time when sales to investors of the Offered
Securities were first made, as set forth in Schedule I hereto (the "TIME OF
SALE"), the Depositor had prepared or approved the following information
(collectively, the "APPROVED OFFERING MATERIALS"): the Preliminary Prospectus,
if any, each "issuer free writing prospectus" (as defined pursuant to Rule 433
under the Act, each an "ISSUER FREE WRITING PROSPECTUS") and any other "free
writing prospectus" (as defined pursuant to Rule 405 under the Act, a "FREE
WRITING PROSPECTUS"), any Corrective Information (as defined below) or portion
thereof listed as "Approved Offering Materials" on Schedule I hereto. If,
subsequent to the date of this Agreement, the Depositor and the Underwriters
have determined that such information included an untrue statement of material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and have terminated their old purchase contracts and
entered into new purchase
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contracts with purchasers of the Offered Securities, then "Approved Offering
Materials" will refer to the information available to purchasers at the time of
entry into the first such new purchase contract, including any information that
corrects such material misstatements or omissions ("CORRECTIVE INFORMATION").
(s) the Approved Offering Materials, at the Time of Sale, did not, and
at the Delivery Date will 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 that the Depositor makes no representation and warranty
with respect to the information contained in or omitted from the Approved
Offering Materials or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the Depositor by
or on behalf of any Underwriter through the Representative specifically for use
in connection with the preparation of the Approved Offering Materials.
(t) there are no actions, suits, proceedings, inquiries or
investigations pending or, to the knowledge of the Company, threatened (i)
against or affecting the Company, or (ii) which has the subject thereof any of
the respective officers and directors of the Company or to which the properties,
assets or rights of the Company are subject, at law or in equity, before or by
any federal, state, local or foreign governmental or regulatory commission,
board, body, authority, arbitral panel or agency, or (iii) relating to
environmental or discrimination matters, where in any such case (A) there is a
reasonable possibility that such action, suit or proceeding might be determined
adversely to the Company and (B) if so determined adversely, could result in a
judgment, decree, award or order having a Material Adverse Effect or could
adversely affect the consummation of the transactions contemplated by this
Agreement;
(u) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as may be
otherwise stated in the Registration Statement or Prospectus, there has not been
(i) any Material Adverse Change or any development that could reasonably be
expected to result in a Material Adverse Change, whether or not arising in the
ordinary course of business, (ii) any transaction that is material to the
Company, contemplated or entered into by the Company or any material liability
or obligation, indirect, direct or contingent, not in the ordinary course of
business, or (iii) any obligation, contingent or otherwise, directly or
indirectly incurred by the Company;
(v) the issuance and sale of the Offered Securities to the
Underwriters hereunder have been duly authorized by the Company, and, when
issued and duly delivered against payment therefore as contemplated by this
Agreement, will be validly issued, fully paid and non-assessable, free and clear
of any pledge, lien, encumbrance, security interest or other claim, and the
issuance and sale of the Offered Securities by the Company is not subject to
preemptive or other similar rights arising by operation of law, under the
organizational documents of the Company or under any agreement to which the
Company or any Subsidiary (each, a "SUBSIDIARY" and, collectively,
"SUBSIDIARIES") is a party or otherwise; except as contemplated herein or as
otherwise disclosed in the Registration Statement and the Prospectus, except as
set forth in the Registration Statement and the Prospectus, there are no
contracts, agreements or understandings between the Company and any person or
entity granting such
-11-
person or entity the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company;
(w) the Company has not taken, and will not take, directly or
indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Offered Securities;
(x) neither the Company nor any of its affiliates (i) is required to
register as a "broker" or "dealer" in accordance with the provisions of the
Exchange Act, or the rules and regulations thereunder (the "EXCHANGE ACT
REGULATIONS"), or (ii) directly, or indirectly through one or more
intermediaries, controls or has any other association with (within the meaning
of Article I of the Bylaws of the NASD) any member firm of the NASD;
(y) the Company has not relied upon the Representative for any legal,
tax or accounting advice in connection with the offering and sale of the Offered
Securities;
(z) any certificate signed by any officer of the Company delivered to
the Representative or to legal counsel for the Underwriters pursuant to or in
connection with this Agreement shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby;
(aa) the form of certificate used to evidence the Offered Securities
complies in all material respects with all applicable statutory requirements,
with any applicable requirements of the organizational documents of the Company;
(bb) the descriptions in the Registration Statement and the Prospectus
of the legal or governmental proceedings, contracts, leases and other legal
documents therein described present fairly the information required to be shown,
and there are no legal or governmental proceedings, contracts, leases, or other
documents of a character required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement which
are not described or filed as required; all agreements between the Company and
third parties expressly referenced in the Registration Statement and the
Prospectus are legal, valid and binding obligations of the Company, enforceable
in accordance with their respective terms, except to the extent enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and by general equitable principles;
(cc) the Company has filed on a timely basis all necessary federal,
state, local and foreign income and franchise tax returns required to be filed
through the date hereof [or have properly requested extensions thereof] and have
paid all taxes shown as due thereon, and if due and payable, any related or
similar assessment, fine or penalty levied against the Company [except as may be
being contested in good faith and by appropriate proceedings]; no tax deficiency
has been asserted against the Company, nor does the Company know of any tax
deficiency which is likely to be asserted against it which, if determined
adversely to the Company, could have a Material Adverse Effect; all tax
liabilities are adequately provided for on the respective books of the Company;
-12-
(dd) all securities issued by the Company, or any trusts established
by the Company, have been issued and sold in compliance with (i) all applicable
federal and state securities laws, and (ii) the laws of the applicable
jurisdiction of incorporation of the issuing entity;
(ee) in connection with this offering, the Company has not offered and
will not offer the Offered Securities in a manner in violation of the Securities
Act; the Company has not distributed and will not distribute any prospectus or
other offering material, other than the Preliminary Prospectus and the
Prospectus, in connection with the offer and sale of the Offered Securities;
(ff) [except as otherwise disclosed in the Prospectus,] the Company
has not incurred any liability for any broker's or finder's fees or similar
payments in connection with the transactions herein contemplated;
(gg) neither the Company nor any of the Subsidiaries is and, after
giving effect to the offering and sale of the Offered Securities, will be an
"investment company" or an entity "controlled" by an "investment company," as
such terms are defined in the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT"); and
(hh) the conduct of business by the Company as presently and proposed
to be conducted is not subject to continuing oversight, supervision, regulation
or examination by any governmental official or body of the United States or any
other jurisdiction wherein the Company conducts or proposes to conduct such
business, except as described in the Prospectus and except such regulation as is
applicable to commercial enterprises generally.
(ii) (i) At the earliest time after the filing of the Registration
Statement that the Depositor or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) of Rules and Regulations and (ii) at
the date hereof, the Depositor is not an Ineligible Issuer, as such term is
defined in Rule 405 of the Rules and Regulations.
(jj) Any Issuer Free Writing Prospectus conforms in all material
respects to the requirements of the Act and the Rules and Regulations. The
Issuer Free Writing Prospectus as of the date thereof and as of the Delivery
Date does not and will 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 that no representation or warranty is made as to information contained
in or omitted from the Issuer Free Writing Prospectus in reliance upon and in
conformity with written information furnished to the Depositor in writing by the
Underwriter expressly for use therein, it being understood that such information
is limited to the information identified on Schedule I hereto as the
"UNDERWRITERS' INFORMATION." The Depositor acknowledges that the Underwriters'
Information constitutes the only information furnished in writing to you or on
your behalf for use in connection with the preparation of the Issuer Free
Writing Prospectus identified on Schedule I hereto and the Representative
confirms that the Underwriters' Information is correct. Any Issuer Free Writing
Prospectus delivered to the Underwriters for use in connection with the offering
of the Offered Securities will be identical to the electronically
-13-
transmitted copies thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system, except to the extent permitted by
Regulation S-T.
(kk) The Depositor (including its agents and representatives other
than the Underwriters in their capacity as such) has not made, used, prepared,
authorized, approved or referred to and will not make, use, prepare, authorize,
approve or refer to any "written communication" (as defined in Rule 405 under
the Act) that constitutes an offer to sell or solicitation of an offer to buy
the Offered Securities other than (i) the Preliminary Prospectus, if any, (ii)
the Prospectus, (iii) information included in the Approved Offering Materials,
(iv) any document not constituting a prospectus pursuant to Section 2(a)(10)(a)
of the Act or Rule 134 under the Act or (v) other written communication approved
in writing in advance by the Representative.
5. Certain Covenants.
The Company hereby agrees with each Underwriter:
(a) that the Company shall cooperate with the Representative and legal
counsel for the Underwriters and furnish such information as may be required to
qualify or register the Offered Securities for sale under (or obtain exemptions
from the application of) the state securities or blue sky laws or Canadian
provincial Securities laws of those jurisdictions designated by the
Representative, shall comply with such laws and shall continue such
qualifications, registrations and exemptions in effect so long as required for
the distribution of the Offered Securities; and that the Company shall not be
required to qualify as a foreign corporation or to take any action that would
subject it to general service of process in any such jurisdiction where it is
not presently qualified or where it would be subject to taxation as a foreign
corporation; and that the Company shall use its best efforts to prevent the
suspension of the qualification or registration of (or any such exemption
relating to) the Offered Securities for offering, sale or trading in any
jurisdiction and will advise the Representative promptly of such suspension or
any initiation or threat of any proceeding for any such purpose, and that in the
event of the issuance of any order suspending such qualification, registration
or exemption, the Company shall use its best efforts to obtain the withdrawal
thereof at the earliest possible moment;
(b) that if, at the time this Agreement is executed and delivered, it
is necessary for a post-effective amendment to the Registration Statement to be
declared effective before the offering of the Offered Securities may commence,
the Company will endeavor to cause such post-effective amendment to become
effective as soon as possible;
(c) to prepare the Prospectus in a form approved by the Underwriters
and file such Prospectus (or a term sheet as permitted by Rule 434) with the
Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00
a.m. (New York City time), on the day following the execution and delivery of
this Agreement or on such other day as the parties may mutually agree and to
furnish promptly (and with respect to the initial delivery of such Prospectus,
not later than 10:00 a.m. (New York City time) on the day following the
execution and delivery of this Agreement or on such other day as the parties may
mutually agree to the Underwriters copies of the Prospectus (or of the
Prospectus as amended or supplemented if the
-14-
Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) in such quantities and at such
locations as the Underwriters may reasonably request for the purposes
contemplated by the Securities Act Regulations, which Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to the version created to be transmitted to the Commission for filing
via XXXXX, except to the extent permitted by Regulation S-T;
(d) that, after the date of this Agreement, the Company shall promptly
advise the Representative in writing (i) of the receipt of any comments of, or
requests for additional or supplemental information from, the Commission, (ii)
of the time and date of any filing of any post-effective amendment to the
Registration Statement or any amendment or supplement to any preliminary
prospectus or the Prospectus, (iii) of the time and date that any post-effective
amendment to the Registration Statement becomes effective and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or of any order
preventing or suspending the use of any preliminary prospectus or the
Prospectus; and, if the Commission shall enter any such stop order at any time,
the Company will use its best efforts to obtain the lifting of such order at the
earliest possible moment; the Company shall advise the Representative promptly
of any proposal to amend or supplement the Registration Statement or Prospectus
and to file no such amendment or supplement to which the Representative shall
reasonably object in writing; additionally, the Company agrees that it shall
comply with the provisions of Rules 424(b), 430A and 434, as applicable, under
the Securities Act and will use its reasonable efforts to confirm that any
filings made by the Company under such Rule 424(b) were received in a timely
manner by the Commission;
(e) to advise the Underwriters promptly of the happening of any event
known to the Company within the time during which a Prospectus relating to the
Offered Securities is required to be delivered under the Securities Act
Regulations which, in the judgment of the Company or in the reasonable opinion
of the Representative or legal counsel for the Underwriters, would require the
making of any change in the Prospectus then being used so that the Prospectus
would not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend or supplement the
Prospectus to comply with any law and, during such time, to promptly prepare and
furnish to the Underwriters copies of the proposed amendment or supplement
before filing any such amendment or supplement with the Commission and
thereafter promptly furnish at the Company's own expense to the Underwriters and
to dealers, copies in such quantities and at such locations as the
Representative may from time to time reasonably request of an appropriate
amendment to the Registration Statement or supplement to the Prospectus so that
the Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus,
as amended or supplemented, will comply with the law;
(f) to file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Representative, be required by
the Securities Act or requested by the Commission;
-15-
(g) that, prior to filing with the Commission any amendment to the
Registration Statement or supplement or amendment to the Prospectus or any
Prospectus pursuant to Rule 424 under the Securities Act, the Company shall
furnish to the Representative for review a copy of each such proposed amendment
or supplement, and the Company shall not file any such proposed amendment or
supplement to which the Representative reasonably objects;
(h) to furnish promptly to the Representative a signed copy of the
Registration Statement, as initially filed with the Commission, and of all
amendments or supplements thereto (including all exhibits filed therewith or
incorporated by reference therein) and such number of conformed copies of the
foregoing as the Representative may reasonably request;
(i) to furnish to the Representative, not less than two business days
before filing with the Commission subsequent to the effective date of the
Prospectus and during the period referred to in paragraph (f) above, a copy of
any document proposed to be filed with the Commission pursuant to Section 13,
14, or 15(d) of the Exchange Act and during such period to file all such
documents in the manner and within the time periods required by the Exchange Act
and the Exchange Act Regulations;
(j) not to, and to use its best efforts to cause its officers,
directors and affiliates not to, (i) take, directly or indirectly prior to
termination of the underwriting syndicate contemplated by this Agreement, any
action designed to stabilize or manipulate the price of any security of the
Company, or which may cause or result in, or which might in the future
reasonably be expected to cause or result in, the stabilization or manipulation
of the price of any security of the Company, to facilitate the sale or resale of
any of the Offered Securities, (ii) sell, bid for, purchase or pay anyone any
compensation for soliciting purchases of the Offered Securities or (iii) pay or
agree to pay to any person any compensation for soliciting any order to purchase
any other securities;
(k) that during the time period in which a Prospectus relating to the
Offered Securities is required to be delivered under the Securities Act
Regulations, the Company shall file, on a timely basis, with the Commission, all
reports and documents required to be filed under the Exchange Act;
[additionally, the Company shall report the use of proceeds from the issuance of
the Offered Securities as may be required under Rule 463 under the Securities
Act;]
(l) if at any time during the 90-day period after the Registration
Statement becomes effective, any publication or event relating to or affecting
the Company shall occur as a result of which, in the reasonable opinion of the
Representative, the market price of the Offered Securities has been or is likely
to be materially affected (regardless of whether such publication or event
necessitates a supplement to or amendment of the Prospectus) and after written
notice from the Representative advising the Company to the effect set forth
above, to forthwith prepare, consult with the Representative concerning the
substance of, and disseminate a press release or other public statement,
reasonably satisfactory to the Representative, responding to or commenting on
such publication or event;
(m) that the Company will comply with all of the provisions of any
undertakings in the Registration Statement;
-16-
(n) that the Company shall not invest, or otherwise use the proceeds
received by the Company from its sale of the Offered Securities in such a manner
as would require the Company to register as an investment company under the
Investment Company Act; and
(o) The Company will cause each Free Writing Prospectus, if any, with
respect to the Offered Securities to be filed with the Commission pursuant to
Rule 433 under the Act in accordance with Section [ ] prior to the time of
filing of the Prospectus as provided in Section [ ] hereof and will include
therein all such materials so furnished; provided, however, the Depositor shall
only be responsible for the filing of a Free Writing Prospectus prepared by the
Underwriters as described in Section 3(e) hereof to the extent delivered by the
Underwriters within the time specified in Section 3(e) hereof.
6. Payment of Expenses.
(a) The Company agrees to pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated hereunder are consummated or this Agreement is
terminated, including expenses, fees and taxes in connection with
(i) the preparation and filing of the Registration Statement
(including financial statements, exhibits, schedules, consents and
certificates of experts), each Preliminary Prospectus, the Prospectus, and
any amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including costs
of mailing and shipment),
(ii) the preparation, issuance and delivery of the certificates
for the Offered Securities to the Underwriters, including any transfer
taxes or duties payable upon the sale of the Offered Securities to the
Underwriters,
(iii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Offered Securities to the
Underwriters,
(iv) all fees and expenses of the Company's counsel, independent
public or certified public accountants and other advisors,
(v) the preparation of this Agreement and any dealer agreements
and furnishing of copies of each to the Underwriters and to dealers
(including costs of mailing and shipment),
(vi) the qualification of the Offered Securities for offering and
sale under state laws that the Company and the Representative have mutually
agreed are appropriate and the determination of their eligibility for
investment under state law as aforesaid (including the legal fees and
filing fees and other disbursements of counsel for the Underwriters and the
printing and furnishing of copies of any blue sky surveys or legal
investment surveys to the Underwriters and to dealers,
-17-
(vii) filing for review of the public offering of the Offered
Securities by the NASD (including the legal fees and filing fees and other
disbursements of counsel for the Underwriters relating thereto),
(viii) the fees and expenses of any transfer agent or registrar
for the Offered Securities and miscellaneous expenses referred to in the
Registration Statement,
(ix) making road show presentations with respect to the offering
of the Offered Securities,
(x) preparing and distributing bound volumes of transaction
documents for the Representative and its legal counsel, and
(xi) the performance of the Company's other obligations
hereunder.
(b) The Company agrees to reimburse the Representative for its
reasonable out-of-pocket expenses in connection with the performance of its
activities under this Agreement, including, but not limited to, costs such as
printing, facsimile, courier service, direct computer expenses, accommodations
and travel, but excluding the fees and expenses of the Underwriters' outside
legal counsel and any other advisors, accountants, appraisers, etc. (other than
the fees and expenses of counsel with respect to state securities or blue sky
laws and obtaining the filing for review of the public offering of the Offered
Securities by the NASD, all of which shall be reimbursed by the Company pursuant
to the provisions of subsection (a) above).(1)
(c) If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (such as printing, facsimile, courier service, direct
computer expenses, accommodations, travel and the fees and disbursements of
Underwriters' counsel) and any other advisors, accountants, appraisers, etc.
reasonably incurred by such Underwriters in connection with this Agreement or
the transactions contemplated herein.
----------
(1) A substitute non-accountable expense allowance provision could be used in
certain circumstances as follows: The Company agrees to pay the
Representative a $_________ non-accountable expense allowance to cover
out-of-pocket expenses incurred by the Representative in connection with
the performance of its activities under this Agreement, including, but not
limited to, costs such as printing, facsimile, courier service, direct
computer expenses, accommodations and travel, and the fees and expenses of
the Underwriters' outside legal counsel and any other advisors,
accountants, appraisers, etc. (other than the fees and expenses of counsel
with respect to state securities or blue sky laws and obtaining the filing
for review of the public offering of the Offered Securities by the NASD,
all of which shall be reimbursed by the Company pursuant to the provisions
of subsection (a) above).
-18-
7. Conditions of the Underwriters' Obligations.
The obligations of the Underwriters hereunder to purchase Offered
Securities at the Closing Time, are subject to the accuracy of the
representations and warranties on the part of the Company hereunder on the date
hereof and at the Closing Time, the performance by the Company of its covenants
and other obligations hereunder and to the satisfaction of the following further
conditions at the Closing Time:
(a) The Company shall furnish to the Representative opinions of Hunton
& Xxxxxxxx LLP, counsel for the Company, dated as of the Delivery Date and as of
the date of the Preliminary Prospectus, if any, except that the opinions in
clauses (ii) - (viii), (xiii) and (xiv) below may be delivered by internal
Company counsel (and the Representative shall have received an additional [___]
conformed copies of such counsel's legal opinion for each of the several
Underwriters), addressed to the Underwriters and dated the Closing Time, and in
form and substance satisfactory to the Underwriters, stating that:
(i) the Offered Securities conform to the descriptions thereof
set forth in the Prospectus; all of the Offered Securities have been duly
authorized and validly issued, to such counsel's knowledge, have been
issued in compliance with the registration and qualification requirements
of federal and state securities laws; the form of certificate used to
evidence the Offered Securities is in due and proper form and complies with
all applicable requirements of [__].
(ii) the Company is validly existing and in good standing under
the laws of its respective jurisdiction of formation or incorporation with
the requisite power and authority to own, lease and operate its respective
properties and to conduct its respective businesses as described in the
Registration Statement and the Prospectus and, to execute and deliver this
Agreement and to consummate the transactions described in this Agreement;
(iii) to such counsel's knowledge, the Company is in compliance
in all material respects with all applicable laws, orders, rules,
regulations and orders, including those relating to transactions with
affiliates;
(iv) to such counsel's knowledge, the Company is not in violation
of any term or provision of its respective Charter, Bylaws, Certificate of
Formation, or is in breach of, or in default under (nor has any event
occurred which with notice, lapse of time, or both would constitute a
breach of, or default under), any license, indenture, mortgage, deed of
trust, loan or credit agreement or any other agreement or instrument to
which the Company is a party or by which the Company or its properties may
be bound or affected or under any law, regulation or rule or any decree,
judgment or order applicable to the Company, except such breaches or
defaults which would not have a Material Adverse Effect;
(v) the execution, delivery and performance of this Agreement by
the Company and the consummation by the Company of the transactions
contemplated by this Agreement do not and will not (A) conflict with, or
result in any breach of, or
-19-
constitute a default under (nor constitute any event which with notice,
lapse of time, or both would constitute a breach of or default under), (i)
any provisions of the Certificate of Incorporation, Charter or By-laws of
the Company (ii) any provision of any material license, indenture,
mortgage, deed of trust, loan, credit or other agreement or instrument
known to such counsel and to which the Company is a party or by which the
Company or its properties or assets may be bound or affected, (iii) any law
or regulation binding upon or applicable to the Company or any of its
properties or assets, or (iv) any decree, judgment or order known to such
counsel to be applicable to the Company; or (B) result in the creation or
imposition of any lien, charge, claim or encumbrance upon any property or
assets of the Company;
(vi) the Company has the full legal right, power and authority to
execute and perform the Agreement and consummate the transactions
contemplated herein; this Agreement has been duly authorized, executed and
delivered by the Company, and is a legal, valid and binding agreement of
the Company enforceable in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, and by general principles of
equity, and except that enforceability of the indemnification and
contribution provisions set forth in Section 10 of this Agreement may be
limited by the federal or state securities laws of the United States or
public policy underlying such laws;
(vii) no approval, authorization, consent or order of, or
registration or filing with any federal or state governmental or regulatory
commission, board, body, authority or agency is required in connection with
the Company's execution, delivery and performance of this Agreement, the
consummation of the transactions contemplated herein and by the Prospectus,
and the sale and delivery of the Offered Securities by the Company as
contemplated herein, other than such as have been obtained or made (A)
under the Securities Act, the Securities Act Regulations, the Exchange Act,
Exchange Act Regulations, and the state securities or blue sky laws of the
various jurisdictions in which the Offered Securities are being offered by
the Underwriters, and (B) from the NASD;
(viii) to such counsel's knowledge, the Company has all necessary
material licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state or local law,
regulation or rule, and has obtained all necessary authorizations, consents
and approvals from other persons, required to conduct their respective
businesses, as described in the Prospectus; to the best of such counsel's
knowledge, the Company is not in violation of, in default under, or has
received any notice regarding a possible violation, default or revocation
of any such material license, authorization, consent or approval or any
federal, state, local or foreign law, regulation or decree, order or
judgment applicable to the Company;
(ix) the Company is not subject to registration as an investment
company under the Investment Company Act of 1940, as amended, and the
transactions contemplated by this Agreement will not cause the Company to
become an "investment company" or a company "controlled" by an investment
company within the meaning of such Act;
-20-
(x) the Offered Securities have been duly authorized and when the
Offered Securities have been issued and duly delivered against payment
therefore as contemplated by this Agreement, the Offered Securities will be
validly issued, and the Underwriters will acquire good and marketable title
to the Offered Securities, free and clear of any pledge, lien, encumbrance,
security interest, or other claim;
(xi) Any Free Writing Prospectus required to be filed by the
Depositor with the Commission (other than those Free Writing Prospectuses
containing Issuer Information prepared by the Underwriter that the
Underwriter fails to deliver) has been filed pursuant to Rule 433 of the
Rules and Regulations in the manner and within the time period required by
Rule 433;
(xii) [each of] the Registration Statement [and the Rule 462(b)
Registration Statement, if any,] has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of [either of] the Registration Statement [or the Rule 462(b)
Registration Statement, if any,] has been issued under the Securities Act
and, to the best knowledge of such counsel, no proceedings for such purpose
have been instituted or are pending or are contemplated or threatened by
the Commission; any required filing of the Prospectus and any supplement
thereto pursuant to Rule 424(b) under the Securities Act has been made in
the manner and within the time period required by such Rule 424(b);
(xiii) the Registration Statement, [including any Rule 462(b)
Registration Statement,] the Prospectus [including any document
incorporated by reference therein], and the Issuer Free Writing Prospectus
in the Approved Offering Materials and each amendment or supplement to the
Registration Statement and the Prospectus [including any document
incorporated by reference therein], as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included [or incorporated by reference] therein or in exhibits to or
excluded from the Registration Statement, as to which no opinion need be
rendered) comply as to form in all material respects with the applicable
requirements of the Securities Act [and the Exchange Act];
(xiv) there are no actions, suits or proceedings, inquiries, or
investigations pending or, to such counsel's knowledge, threatened against
the Company or any of its officers and directors or to which the
properties, assets or rights of any such entity are subject, at law or in
equity, before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority, arbitral panel or agency
which are required to be described in the Registration Statement and the
Prospectus but are not so described; and
(xv) there are no contracts or documents of a character which are
required to be filed as exhibits to the Registration Statement or required
to be described or summarized in the Prospectus which have not been so
filed, summarized or described, and all such summaries, descriptions, and
references thereto, in all material respects, fairly and accurately set
forth the material provisions of such contracts and documents.
-21-
In addition, such counsel shall state that they have participated
in conferences with officers and other representatives of the Company,
representatives of the independent public or certified public accountants
for the Company and with representatives of the Underwriters at which the
contents of the Registration Statement and the Prospectus, and any
supplements or amendments thereto, and related matters were discussed and,
although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus (other than as
specified above), and any supplements or amendments thereto, on the basis
of the foregoing, nothing has come to their attention which would lead them
to believe that either the Registration Statement or any amendments
thereto, at the time the Registration Statement or such amendments became
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, as of its
date or at the Closing Time, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
belief as to the financial statements or schedules or other financial or
statistical data derived therefrom, included [or incorporated by reference]
in the Registration Statement or the Prospectus or any amendments or
supplements thereto).
In rendering such opinion, such counsel may rely (i) as to
matters involving the application of laws of any jurisdiction other than
the Delaware Stock Corporation Act or the federal law of the United States,
to the extent they deem proper and specified in such opinion, upon the
opinion (which shall be dated the Closing Time, shall be satisfactory in
form and substance to the Underwriters, shall expressly state that the
Underwriters may rely on such opinion as if it were addressed to them and
shall be furnished to the Representative) of other counsel of good standing
whom they believe to be reliable and who are satisfactory to counsel for
the Underwriters; provided, however, that such counsel shall further state
that they believe that they and the Underwriters are justified in relying
upon such opinion of other counsel, and (ii) as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the
Company and public officials.
(b) The Representative shall have received from [INSERT NAME OF
INDEPENDENT AUDITORS], letters dated, respectively, as of the date of this
Agreement, the Closing Time, addressed to the Representative, in form and
substance satisfactory to the Representative, containing statements to the
effect that they are independent accountants with respect to the Company within
the meaning of Rule 101 of the AICPA's Code of Professional Conduct, and
statements and information of the type ordinarily included in accountant's
"comfort letters" to underwriters, delivered according to Statement of Auditing
Standards No. 72 (or any successor bulletin), with respect to the audited and
unaudited financial statements and certain financial information contained in
the [INSERT THE DOCUMENT ON WHICH INVESTORS ARE TO CONFIRM SALES] (and the
Representative shall have received an additional [___] conformed copies of such
accountants' letter for each of the several
-22-
Underwriters).(2) In addition, the Representative shall have received
confirmation from independent certified public accountants, that no material
pool characteristic (as agreed upon by the Depositor and the Representative) of
the actual asset pool as of the Delivery Dates differs by 5% or more (other than
as a result of the pool assets converting into cash in accordance with their
terms) from the description of the asset pool in the Prospectus Supplement
relating to the Offered Securities filed with the Commission.
(c) At the Closing Time, the Representative shall have received from
[___], independent public or certified public accountants for the Company, a
letter dated such date, in form and substance satisfactory to the
Representative, to the effect that they reaffirm the statements made in the
letter furnished by them pursuant to subsection (b) of this Section 7, except
that the specified date referred to therein for the carrying out of procedures
shall be no more than three business days prior to the Closing Time (and the
Representative shall have received an additional [___] conformed copies of such
accountants' letter for each of the several Underwriters);
(d) No amendment or supplement to the Registration Statement or
Prospectus shall have been filed to which the Underwriters shall have objected
in writing;
(e) Prior to the Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement, any Rule 462(b) Registration
Statement, or any post-effective amendment to the Registration Statement or any
order preventing or suspending the use of any Preliminary Prospectus or
Prospectus has been issued or is in effect, and no proceedings for such purpose
shall have been initiated or threatened, by the Commission, and no suspension of
the qualification of the Offered Securities for offering or sale in any
jurisdiction, or the initiation or threatening of any proceedings for any of
such purposes, has occurred; (ii) all requests for additional information on the
part of the Commission shall have been complied with to the reasonable
satisfaction of the Representative; and (iii) the Registration Statement and the
Prospectus shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(f) Prior to the Closing Time, the Company shall have filed the
Prospectus with the Commission (including the information required by Rule 430A
under the Securities Act) in the manner and within the time period required by
Rule 424(b) under the Securities Act; or the Company shall have filed a
post-effective amendment to the Registration Statement containing the
information required by such Rule 430A, and such post-effective amendment shall
have become effective; or, if the Company elected to rely upon Rule 434 under
the Securities Act and obtained the Representative's consent thereto, the
Company shall have filed a term sheet with the Commission in the manner and
within the time period required by such Rule 424(b);
----------
(2) Depending on the deal, it may be appropriate to include specific
requirements for the comfort letter rather than this general language.
-23-
(g) Between the time of execution of this Agreement and the Closing
Time, (i) there shall not have been any Material Adverse Change, and (ii) no
transaction which is material and unfavorable to the Company shall have been
entered into by the Company, in each case, which in the Representative' sole
judgment, makes it impracticable or inadvisable to proceed with the public
offering of the Offered Securities as contemplated by the Registration
Statement.
(h) [Between the time of execution of this Agreement and the Closing
Time, there shall not have occurred any downgrading, nor shall any notice have
been given of any intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the possible change, in
the rating accorded any securities of the Company by any "nationally recognized
statistical rating organization" as such term is defined for purposes of Rule
436(g)(2) under the Securities Act;]
(i) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements;
(j) The Representative shall have received, at the Closing Time, a
certificate of duly authorized officers of the Company, dated as of such Closing
Time, to the effect that the signers of such certificates have carefully
examined the Prospectus, any amendment or supplement to the Prospectus and this
Agreement, and that;
(i) the representations and warranties of the Company in this
Agreement are true and correct, as if made on and as of the date hereof,
and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the date
hereof;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto has been
issued and no proceedings for that purpose have been instituted or are
pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at all
times subsequent thereto up to the date hereof, the Registration Statement
and the Prospectus, and any amendments or supplements thereto contained all
material information required to be included therein by the Securities Act
or the Exchange Act and the applicable rules and regulations of the
Commission thereunder, as the case may be, and in all material respects
conformed to the requirements of the Securities Act or the Exchange Act and
the applicable rules and regulations of the Commission thereunder, as the
case may be; the Registration Statement and the Prospectus, and any
amendments or supplements thereto, did not and do not include any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and, since
the effective date of the Registration Statement, there has occurred no
event required to be set forth in an amendment or supplemented Prospectus
which has not been so set forth;
-24-
(iv) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has not
been (a) any Material Adverse Change, (b) any transaction that is material
to the Company, except transactions entered into in the ordinary course of
business, (c) any obligation, direct or contingent, that is material to the
Company, incurred by the Company, except obligations incurred in the
ordinary course of business, (d) any change in the capitalization of the
Company that is material to the Company, (e) any dividend or distribution
of any kind declared, paid or made on the capital stock of the Company, or
(f) any loss or damage (whether or not insured) to the property of the
Company which has been sustained or will have been sustained which has a
Material Adverse Effect; and
(v) Nothing has come to the attention of such person that would
lead him to believe that the Prospectus contains any untrue statement of a
material fact or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(k) The Representatives shall receive, at the Closing Time, a
certificate of the Secretary of the Company certifying as to (i) the Certificate
of Incorporation and any amendments thereto, (ii) the Bylaws and any amendments
thereto, (iii) resolutions of the Board of Directors of the Company authorizing
the execution and delivery of this Agreement and the other offering documents
and a specimen of the Offered Securities certificate;
(l) The Company shall have furnished to the Underwriters such other
documents and certificates as to the accuracy and completeness of any statement
in the Registration Statement and the Prospectus, the representations,
warranties and statements of the Company contained herein, and the performance
by the Company of its covenants contained herein, and the fulfillment of any
conditions contained herein, as of the Closing Time, as the Underwriters may
reasonably request;
(m) Each party providing credit enhancement to the Offered Securities
shall have furnished to the Representative an opinion, dated the Closing Time,
of its counsel, with respect to the Registration Statement and the Prospectus,
and such other related matters, in the form previously agreed to by such
provider and the Representative;
(n) On or prior to the Closing Time, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of the Company which in your reasonable judgment
materially impairs the investment quality of the Offered Securities so as to
make it impractical or inadvisable to proceed with the public offering or the
delivery of the Offered Securities as contemplated by the Prospectus; and
(o) The Offered Securities shall be rated not lower than the required
ratings set forth under the heading "Ratings" in the Prospectus Supplement, such
ratings shall not have been rescinded and no public announcement shall have been
made that any such required rating of the Offered Securities has been placed
under review (otherwise than for possible upgrading).
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8. Delivery and Filing of Free Writing Prospectuses; Designation of
Approved Offering Materials.
(a) The Depositor agrees to file with the Commission the following:
(i) Any Issuer Free Writing Prospectus;
(ii) Any Free Writing Prospectus or portion thereof delivered by
the Underwriters to the Depositor pursuant to Section 3(e); and
(iii) Any Free Writing Prospectus for which the Depositor or any
person acting on its behalf provided, authorized or approved information
that is prepared and published or disseminated by a person unaffiliated
with the Depositor or any other offering participant that is in the
business of publishing, radio or television broadcasting or otherwise
disseminating communications.
(b) Any Free Writing Prospectus required to be filed pursuant to
Section 8(a) by the Depositor shall be filed with the Commission not later than
the date of first use of the Free Writing Prospectus, except that:
(i) If any Free Writing Prospectus or portion thereof required to
be filed that contains only the description of the final terms of the
offered Securities may be filed by the Depositor within two days of the
later of the date such final terms have been established for all classes of
offered Securities and the date of first use; and
(ii) If the Issuer Free Writing Prospectus, or Issuer Information
contained in the Free Writing Prospectus would constitute ABS Informational
and Computational Materials, the Depositor shall file such Issuer Free
Writing Prospectus or Issuer Information within the later of two business
days after the Underwriter first provides this information to investors and
the date upon which the Depositor is required to file the Prospectus
Supplement with the Commission pursuant to Rule 424(b) of the Act;
(iii) Any Free Writing Prospectus required to be filed pursuant
to this Agreement shall, if no payment has been made or consideration has
been given by or on behalf of the Depositor for the Free Writing Prospectus
or its dissemination, be filed by the Depositor with the Commission not
later than four business days after the Depositor becomes aware of the
publication, radio or television broadcast or other dissemination of the
Free Writing Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer
Information contained in any Free Writing Prospectus of an Underwriter or
any other offering participant other than the Depositor, if such
information is included or incorporated by reference in a prospectus or
Free Writing Prospectus previously filed with the Commission that relates
to the offering of the offered Securities, or (B) any Free Writing
Prospectus or portion thereof that contains a description of the offered
Securities or the offering of the offered Securities which does not reflect
the final terms thereof;
-26-
provided, that prior to such use of any Free Writing Prospectuses by the
Depositor, the Underwriter must comply with its obligations pursuant to Section
4 and that the Depositor shall not be required to file any Free Writing
Prospectus that does not contain substantive changes from or additions to a Free
Writing Prospectus previously filed with the Commission.
(c) Any "written communication" (as defined in Rule 405 under the Act)
prepared by or on behalf of the Underwriters to be designated as "Approved
Offering Materials" on Schedule I hereto must be delivered to the Depositor and
its counsel, no later than the business day prior to the proposed date of first
use thereof. The Depositor must consent to prior to any such "written
communication" being designated as "Approved Offering Materials" on Schedule I
hereto.
9. Termination.
The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of the Representative, at any time prior
to the Closing Time,
(i) if any of the conditions specified in Section 7 shall not
have been fulfilled when and as required by this Agreement to be fulfilled,
or
(ii) if there has been, in the judgment of the Representative,
since the respective dates as of which information is given in the
Registration Statement, any Material Adverse Change, or any development
involving a prospective Material Adverse Change, or material change in
management of the Company, whether or not arising in the ordinary course of
business, or
(iii) if there has occurred any outbreak or escalation of
national or international hostilities, other national or international
calamity or crisis (including without limitation any terrorist or similar
attack), any change in the United States or international financial
markets, or any substantial change in United States' or international
economic, political, financial or other conditions, the effect of which on
the financial markets of the United States is such as to make it, in the
judgment of the Representative, impracticable to market the Offered
Securities in the manner and on the terms described in the Prospectus or
enforce contracts for the sale of the Offered Securities, or
(iv) any federal or state statute, regulation, rule or order of
any court or other governmental authority has been enacted, published,
decreed or otherwise promulgated which, in the reasonable opinion of the
Representative, materially adversely affects or will materially adversely
affect the business or operations of the Company, or
(v) any action has been taken by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which, in
the reasonable opinion of the Representative, has a material adverse effect
on the securities markets in the United States, or
(vi) the Company shall have sustained a loss by strike, fire,
flood, earthquake, accident or other calamity of such character as in the
judgment of the
-27-
Representative may interfere materially with the conduct of the business
and operations of the Company regardless of whether or not such loss shall
have been insured.
If the Representative elects to terminate this Agreement as provided in
this Section 8, the Company and the Underwriters shall be notified promptly by
telephone, promptly confirmed by facsimile.
If the sale to the Underwriters of the Offered Securities, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
Company shall be unable to comply in all material respects with any of the terms
of this Agreement, the Company shall not be under any obligation or liability
under this Agreement (except to the extent provided in Sections 6 and 11 hereof)
and the Underwriters shall be under no obligation or liability to the Company
under this Agreement (except to the extent provided in Section 11 hereof) or to
one another hereunder.
10. Increase in Underwriters' Commitments.
If any Underwriter shall default at the Closing Time in its obligation to
take up and pay for the Offered Securities to be purchased by it under this
Agreement on such date, the Representative shall have the right, within 48 hours
after such default, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Offered Securities which such Underwriter shall have agreed but failed to
take up and pay for (the "DEFAULTED SECURITIES"). Absent the completion of such
arrangements within such 36-hour period, (i) if the total number of Defaulted
Securities does not exceed 10% of the total number of Offered Securities to be
purchased on such date, each non-defaulting Underwriter shall take up and pay
for (in addition to the number of Offered Securities which it is otherwise
obligated to purchase on such date pursuant to this Agreement) the portion of
the total number of Offered Securities agreed to be purchased by the defaulting
Underwriter on such date in the proportion that its underwriting obligations
hereunder bears to the underwriting obligations of all non-defaulting
Underwriters; and (ii) if the total number of Defaulted Securities exceeds 10%
of the total number of Offered Securities to be purchased on such date, the
Representative may terminate this Agreement by notice to the Company, without
liability of any party to any other party except that the provisions of Sections
6 and 11 hereof shall at all times be effective and shall survive such
termination.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Offered Securities hereunder on such date unless all of the Offered
Securities to be purchased on such date are purchased on such date by the
Underwriters (or by substituted Underwriters selected by the Representative with
the approval of the Company or selected by the Company with the approval of the
Representative).
If a new Underwriter or Underwriters are substituted for a defaulting
Underwriter in accordance with the foregoing provision, the Company or the
non-defaulting Underwriters shall have the right to postpone the Closing Time
for a period not exceeding seven business days in order that any necessary
changes in the Registration Statement and Prospectus and other documents may be
effected.
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The term "Underwriter" as used in this Agreement shall refer to and include
any Underwriter substituted under this Section 9 with the same effect as if such
substituted Underwriter had originally been named in this Agreement.
11. Indemnity and Contribution by the Company and the Underwriters.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its officers and employees, and any person who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any loss, liability, damage, claim
(including the reasonable cost of investigation) or expenses, as incurred,
which, jointly or severally, any such Underwriter or controlling person may
incur under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Company), insofar as such loss, expense, liability, damage or
claim arises out of or is based upon (i) in whole or in part upon any inaccuracy
or any breach of any representation, warranty or covenant of the Company
contained herein, (ii) in whole or in part upon any failure on the part of the
Company to perform its obligations hereunder or to comply with any applicable
law, rule or regulation relating to the offering of securities being made
pursuant to the Prospectus, (iii) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Company, and including any information deemed to be a part thereof pursuant to
Rule 430A or Rule 434 under the Securities Act), the Prospectus (the term
Prospectus for the purpose of this Section 11 being deemed to include any
Preliminary Prospectus, as amended or supplemented by the Company), (iv) any
application or other document, or any amendment or supplement thereto, executed
by the Company or based upon written information furnished by or on behalf of
the Company filed in any jurisdiction (domestic or foreign) in order to qualify
the Offered Securities under the securities or blue sky laws thereof or filed
with the Commission or any securities association or securities exchange (each
an "APPLICATION"), (v) any omission or alleged omission to state a material fact
required to be stated in any such Registration Statement, Prospectus or any
Application or necessary to make the statements made therein, in the light of
the circumstances under which they were made, not misleading, (vi) any untrue
statement or alleged untrue statement of any material fact contained in any
audio or visual materials used in connection with the marketing of the Offered
Securities, including, without limitation, slides, videos, films and tape
recordings, or (vii) any act or failure to act or any alleged act or failure to
act by any Underwriter in connection with, or relating in any manner to, the
Offered Securities or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, damage, liability or action arising
out of or based upon any matter covered by clauses (iii), (v) or (vi) above,
provided that the Company shall not be liable under this clause (vii) to the
extent that a court of competent jurisdiction shall have determined by a final
judgment that such loss, claim, damage, liability or action resulted directly
from any such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its bad faith or willful misconduct; and to reimburse each
Underwriter and each such controlling person for any and all expenses (including
the fees and disbursements of counsel chosen by the Representative) as such
expenses are reasonably incurred by such Underwriter or such controlling person
in connection with investigating, defending, settling, compromising or paying
any such loss, claim, damage, liability, expense or action; except insofar as
any such loss, expense, liability, damage or claim
-29-
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission of a material fact contained in and in
conformity with information furnished in writing by the Underwriters through the
Representative to the Company expressly for use in such Registration Statement,
Prospectus or Application, except to the extent such material misstatement or
omission is based upon the Pool Information; and provided, further, that with
respect to any Preliminary Prospectus, the foregoing indemnity agreement shall
not inure to the benefit of any Underwriter from whom the person asserting any
loss, claim, damage, liability or expense purchased Offered Securities, or any
person controlling such Underwriter, if copies of the Prospectus were timely
delivered to the Underwriter pursuant to Section 1 and a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Offered Securities to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such loss, claim, damage, liability or expense. The
indemnity agreement set forth in this Section 11(a) shall be in addition to any
liability which the Company may otherwise have.
If any action is brought against an Underwriter or controlling person
in respect of which indemnity may be sought against the Company pursuant to
subsection (a) above, such Underwriter shall promptly notify the Company in
writing of the institution of such action, and the Company shall assume the
defense of such action, including the employment of counsel and payment of
expenses; provided, however, that any failure or delay to so notify the Company
will not relieve the Company of any obligation hereunder, except to the extent
that its ability to defend is actually impaired by such failure or delay. Such
Underwriter or controlling person shall have the right to employ its or their
own counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of such Underwriter or such controlling person unless the
employment of such counsel shall have been authorized in writing by the Company
in connection with the defense of such action, or the Company shall not have
employed counsel to have charge of the defense of such action within a
reasonable time or the Company, or such person shall have reasonably concluded
(based on the advice of counsel) that there may be defenses available to it or
them which are different from or additional to those available to the Company
(in which case the Company shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by the Company and paid as incurred
(it being understood, however, that the Company shall not be liable for the
expenses of more than one separate firm of attorneys for the Underwriters or
controlling persons in any one action or series of related actions in the same
jurisdiction (other than local counsel in any such jurisdiction) representing
the indemnified parties who are parties to such action).
(b) Each Underwriter agrees, severally and not jointly, to indemnify,
defend and hold harmless the Company, the Company's directors, the Company's
officers that signed the Registration Statement, and any person who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any loss, liability, damage, claim (including
the reasonable cost of investigation) or expense, as incurred, which, jointly or
severally, the Company, or any such person may incur under the Securities Act,
the Exchange Act or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written
-30-
consent of such Underwriter), but only insofar as such loss, expense, liability,
damage or claim arises out of or is based upon (A) any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information furnished in writing by such Underwriter through the Representative
to the Company expressly for use in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Company), the Prospectus, or any Application, or (B) any omission or alleged
omission to state a material fact in connection with such information required
to be stated either in such Registration Statement, Prospectus or any
Application or necessary to make such information, in the light of the
circumstances under which made, not misleading; and to reimburse the Company, or
any such director or officer of the Company, or controlling person for any legal
and other expense reasonably incurred by the Company, or any such director or
officer of the Company, or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action. The Company hereby acknowledges that the
statements set forth in the [______] paragraphs under the caption "Underwriting"
in the Preliminary Prospectus and the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by or on
behalf of any Underwriter through the Representative to the Company for purposes
of Section 4(n) and this Section 11. The indemnity agreement set forth in this
Section 11(b) shall be in addition to any liabilities that such Underwriter may
otherwise have.
If any action is brought against the Company, any such director or
officer of the Company, or any such person in respect of which indemnity may be
sought against any Underwriter pursuant to the foregoing paragraph, the Company,
any such director or officer of the Company, or such person shall promptly
notify the Representative in writing of the institution of such action and the
Representative, on behalf of the Underwriters, shall assume the defense of such
action, including the employment of counsel and payment of expenses. The
Company, any such director or officer of the Company, or such person shall have
the right to employ its own counsel in any such case, but the fees and expenses
of such counsel shall be at the expense of the Company, any such director or
officer of the Company, or such person unless the employment of such counsel
shall have been authorized in writing by the Representative in connection with
the defense of such action or the Representative shall not have employed counsel
to have charge of the defense of such action within a reasonable time or the
Company any such director or officer of the Company, or such person shall have
reasonably concluded (based on the advice of counsel) that there may be defenses
available to it or them which are different from or additional to those
available to the Underwriters (in which case the Representative shall not have
the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be borne
by such Underwriter and paid as incurred (it being understood, however, that the
Underwriters shall not be liable for the expenses of more than one separate firm
of attorneys in any one action or series of related actions in the same
jurisdiction (other than local counsel in any such jurisdiction) representing
the indemnified parties who are parties to such action).
(c) The indemnifying party under this Section 11 shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party against any
loss, claim, damage, liability or expense by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
-31-
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by Sections 11b) and (c)
hereof, the indemnifying party agrees that it shall be liable for any settlement
of any proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement, compromise or consent to the entry
of judgment in any pending or threatened action, suit or proceeding in respect
of which any indemnified party is or could have been a party and indemnity was
or could have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding.
(d) If the indemnification provided for in this Section 11 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a), (b) and (c) of this Section 11 in respect of any losses,
expenses, liabilities, damages or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the aggregate amount paid or payable by such indemnified
party as a result of such losses, expenses, liabilities, damages or claims (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand, and the Underwriters, on the other hand, from
the offering of the Offered Securities pursuant to this Agreement or (ii) if
(but only if) the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand, and of the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses,
expenses, liabilities, damages or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand, and the Underwriters, on the other hand, in connection with the
offering of the Offered Securities pursuant to this Agreement shall be deemed to
be in the same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company bear to the underwriting discounts and commissions received by
the Underwriters. The relative fault of the Company, and of the Underwriters
shall be determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission or any such inaccurate or alleged inaccurate representation or warranty
relates to information supplied by the Company on one hand, or by the
Underwriters, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages and liabilities referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any claim or action. The provisions set forth in
Sections 11(b) and (c) with respect to notice of commencement of any action
shall apply if a claim for contribution is to be made under this Section 11(e);
provided, however, that no additional notice shall be required with respect to
any action for which notice has been given under Section (b) and (c) for
purposes of indemnification.
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(e) The Company, and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 11 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in subsection (d)(i) and, if applicable
(ii), above. Notwithstanding the provisions of this Section 11, no Underwriter
shall be required to contribute any amount in excess of the underwriting
discounts and commissions applicable to the Offered Securities purchased by such
Underwriter No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 11 are several
in proportion to their respective underwriting commitments and not joint. For
purposes of this Section 11, each officer and employee of an Underwriter and
each person, if any, who controls an Underwriter within the meaning of the
Section 15 of the Securities Act and Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter, and each director and each
officer of the Company, who signed the Registration Statement, and each person,
if any, who controls the Company with the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act shall have the same rights to
contribution as the Company.
12. Survival.
The respective indemnities, agreements, representations, warranties and
other statements of the Company, of its officers and directors and of the
several Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company, or any of its partners, officers or directors
or any controlling person, as the case may be, and will survive delivery of and
payment for the Offered Securities sold hereunder and any termination of this
Agreement.
13. Notices.
Except as otherwise herein provided, all statements, requests, notices and
agreements shall be in writing or by telegram and, if to the Underwriters, shall
be sufficient in all respects if delivered to [INSERT NAME & ADDRESS OF
UNDERWRITERS' REPRESENTATIVE]; if to the Company, shall be sufficient in all
respects if delivered to the Company at the offices of the Company at Origen
Residential Securities, Inc., 00000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxxx,
Xxxxxxxx 00000.
14. Governing Law; Headings.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
15. Part Unenforceability.
The invalidity or unenforceability of any Section, paragraph or provision
of this Agreement shall not affect the validity or enforceability of any other
Section, paragraph or
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provision hereof. If any Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
16. Parties at Interest.
The Agreement herein set forth has been and is made solely for the benefit
of the Underwriters, the Company, and the controlling persons, directors and
officers referred to in Sections 11 and 12 hereof, and their respective
successors, assigns, executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from any
of the Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
17. Entire Agreement; Amendments, Modifications and Waivers.
This Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter
hereof. This Agreement may not be amended or modified unless in writing by all
of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to
benefit.
18. Counterparts and Facsimile Signatures:
This Agreement may be signed by the parties in counterparts which together
shall constitute one and the same agreement among the parties. A facsimile
signature shall constitute an original signature for all purposes.
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If the foregoing correctly sets forth the understanding among the Company,
and the Underwriters, please so indicate in the space provided below for the
purpose, whereupon this Agreement shall constitute a binding agreement among the
Company, and the Underwriters.
Very truly yours,
ORIGEN RESIDENTIAL SECURITIES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted and agreed to as of the date
first above written:
[_____________________]
By:
---------------------------------
Title:
------------------------------
For itself and as Representative of
the other Underwriters named on
Schedule I hereto.
SCHEDULE I
To Underwriting Agreement
List of Underwriters
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SCHEDULE II
To Underwriting Agreement
Underwriting Allocation
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SCHEDULE III
To Underwriting Agreement
424 Prospectus Supplement
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