Exhibit 1.2
XXXXX ASSET SECURITIZATION, INC.
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES, SERIES 200_-_
UNDERWRITING AGREEMENT
___________, 200_
[_____________________________________]
as Representative of the several Underwriters
c/o [_________________________________]
[street address]
[city, state zip]
Ladies and Gentlemen:
XXXXX ASSET SECURITIZATION, 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 Luminent Mortgage Trust 200_-_, Mortgage-Backed
Certificates, Series 200_-_, Class [__, Class __, Class __, Class __, Class __,
Class __, Class __ and Class __] (collectively, the "OFFERED SECURITIES"),
issued pursuant to the Pooling and Servicing Agreement dated as of _________,
200_ (the "POOLING AND SERVICING AGREEMENT"), among the Company, as depositor
(the "DEPOSITOR"), Maia Mortgage Finance Statutory Trust, as seller (the
"SELLER"), [_______________________], as servicer (the "SERVICER"),
[_______________________], as master servicer (the "MASTER SERVICER") and
securities administrator (in such capacity, the "SECURITIES ADMINISTRATOR"), and
[_______________________], as trustee (the "TRUSTEE"), and the purchase by the
Underwriters, acting severally and not jointly, of their respective Certificate
Principal Balance of the Offered Securities set forth opposite the names of the
Underwriters in Schedule II hereto. The Trustee, on behalf of the Trust and the
certificateholders, will also enter into a cap agreement (the "CAP AGREEMENT")
with [_______________________], as the cap provider (the "CAP PROVIDER"), dated
as of _________, 200_. The Certificates are expected to be issued on _________,
200_ (the "CLOSING DATE").
This Agreement (as defined below), the Pooling and Servicing Agreement, the
Custodial Agreement and the Cap Agreement are sometimes referred to herein
collectively as the "TRANSACTION DOCUMENTS." The Offered Securities will be
issued in minimum denominations and will have the terms set forth in the
Prospectus Supplement (as defined below). Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Pooling and Servicing Agreement.
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. __________), including a
related
prospectus, for the registration of securities including 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 to the registration statement and such
amendments or supplements to the related prospectus, if any, as may have been
required to the date hereof, and will file such additional amendments thereto or
supplements thereto as may hereafter be required. The registration statement has
been declared effective on __________, 200__ under the Securities Act by the
Commission. The registration statement, as amended at the time it was declared
effective by the Commission or deemed to be effective pursuant to Rule 430B of
the Securities Act Regulations and including all information deemed to be a part
of the registration statement whether through incorporation by reference,
pursuant to Rule 430B of the Securities Act Regulations or otherwise, 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 to the Base Prospectus relating to the
Offered Securities and the method of distribution thereof. The term "BASE
PROSPECTUS" means the prospectus included in the Registration Statement as first
required to be filed to satisfy the condition set forth in Rule 172(c) and
pursuant to Rule 424(b) of the Securities Act Regulations, including all
information incorporated by reference therein. The term "PROSPECTUS SUPPLEMENT"
means the prospectus supplement specifically relating to the Offered Securities,
in the form first required to be filed to satisfy the condition set forth in
Rule 172(c) and pursuant to Rule 424(b) of the Securities Act Regulations
(including the Base Prospectus as so supplemented). The term "PROSPECTUS" means
the final Base Prospectus, including, in each case, the Prospectus Supplement,
as first filed with the Commission pursuant to Rule 424(b) of the Securities Act
Regulations, and any amendments thereof or supplements thereto. The term
"PRELIMINARY PROSPECTUS" means any preliminary form of the Prospectus in the
form filed with the Commission pursuant to Rule 424(b) of the Securities Act
Regulations. The Commission has not issued any order preventing or suspending
the use of the Registration Statement or any Prospectus.
The term "DISCLOSURE PACKAGE" means (i) the Base Prospectus and the
Preliminary Prospectus, as most recently amended or supplemented immediately
prior to the Initial Sale Time (as defined herein), (ii) the Issuer Free Writing
Prospectuses (as defined below), if any, identified in Schedule III hereto, and
(iii) any other Free Writing Prospectus (as defined below) that the parties
hereto shall hereafter expressly agree to treat as part of the Disclosure
Package. If, subsequent to the date of this Agreement, the Company and the
Underwriters have determined that the Disclosure Package 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 contracts with purchasers of the Offered
Securities, then the "DISCLOSURE PACKAGE" 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").
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The term "ISSUER FREE WRITING PROSPECTUS" means any "issuer free writing
prospectus", as defined in Rule 433(h) of the Securities Act Regulations. The
term "FREE WRITING PROSPECTUS" means any free writing prospectus, as defined in
Rule 405 of the Securities Act Regulations.
The Company and the Underwriters agree as follows:
1. Sale and Purchase.
Upon the basis of the warranties, representations, agreements 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 initial Certificate Principal Balance of the Offered
Securities set forth in Schedule II opposite such Underwriter's name, plus any
additional Certificate Principal Balance of the Offered Securities 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 shall request, 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, [street
address], [city, state zip], 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 _:__ [a.m./p.m.], New York City time, on the
Closing Date (unless another time and date shall be 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 and that no Underwriter will offer, sell or otherwise distribute
the Offered Securities (except for the sale thereof in exempt transactions)
in any state in which the Offered Securities are not exempt from
registration under "blue sky" or state securities laws (except where the
Offered Securities will have been qualified for offering and sale at such
Underwriter's direction under such "blue sky" or state securities laws).
(b) In connection with the offering of the Offered Securities, the
Underwriters may each prepare and provide to prospective investors Free
Writing Prospectuses, or
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portions thereof, which the Company is required to file with the Commission
in electronic format and will use reasonable efforts to provide to the
Company such Free Writing Prospectuses, or portions thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF, except to
the extent that the Company, in its sole discretion, waives such
requirements, subject to the following conditions (to which such conditions
each Underwriter agrees (provided that no Underwriter is responsible for
any breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriter 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 (1) is made in reliance
on Rule 134 of the Securities Act Regulations, (2) constitutes a
prospectus satisfying the requirements of Rule 430B of the Securities
Act Regulations or (3) constitutes a Free Writing Prospectus and such
Free Writing Prospectus is attached to this Agreement as Schedule IV.
The Underwriter shall not convey or deliver in connection with the
initial offering of the Offered Securities any "ABS informational and
computational material," as defined in Item 1101(a) of Regulation AB
of the Securities Act Regulations ("ABS INFORMATIONAL AND
COMPUTATIONAL MATERIAL"), in reliance upon Rules 167 and 426 of the
Securities Act Regulations.
(ii) Each Underwriter shall deliver to the Depositor, (a) no
later than two business days prior to the date of first use thereof,
any Free Writing Prospectus prepared by or on behalf of such
Underwriter that contains any "issuer information," as defined in Rule
433(h) of the Securities Act Regulations and footnote 271 of the
Commission's Securities Offering Reform Release No. 33-8591 ("ISSUER
INFORMATION") (which the parties hereto agree includes, without
limitation, Pool Information (as defined herein)), and (b) upon first
use, any Free Writing Prospectus or portion thereof that contains only
a description of the final terms of the Offered Securities.
Notwithstanding the foregoing, any Free Writing Prospectus that
contains only ABS Informational and Computational Materials shall be
delivered by any Underwriter to the Company not later than the later
of (a) two business days prior to the due date for filing of the
Prospectus pursuant to Rule 424(b) under the Securities Act and (b)
the date of first use of such Free Writing Prospectus.
(iii) Each Underwriter represents and warrants to the Company
that the Free Writing Prospectuses to be furnished to the Company by
such Underwriter pursuant to Section 3(b)(ii) above will constitute
all Free Writing Prospectuses of the type described in such Section
that were furnished to prospective investors by such Underwriter in
connection with its offer and sale of the Offered Securities.
(iv) Each Underwriter represents and warrants to the Company that
each Free Writing Prospectus required to be provided by it to the
Company pursuant to Section 3(b)(ii) above, did not, as of the Time of
Sale, and will not as of the Closing Date, include any untrue
statement of a material fact or, when read
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in conjunction with the other information included in the Disclosure
Package, 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 such Underwriter makes no
representation to the extent such misstatements or omissions were the
result of any inaccurate Issuer Information supplied by the Company to
such Underwriter, which information was not corrected by Corrective
Information subsequently supplied by the Company to such Underwriter
prior to the Time of Sale.
(v) The Company agrees to file with the Commission the following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof delivered
by any Underwriter to the Company pursuant to Section 3(b)(ii);
and
(C) Any Free Writing Prospectus for which the Company 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 Company or any other offering
participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating
communications.
(vi) Any Free Writing Prospectus required to be filed pursuant to
Section 3(b)(v) by the Company shall be filed with the Commission not
later than the date of first use of the Free Writing Prospectus,
except that:
(A) Any Free Writing Prospectus or portion thereof required
to be filed that contains only the description of the final terms
of the Offered Securities shall be filed by the Company with the
Commission 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;
(B) Any Free Writing Prospectus or portion thereof required
to be filed that contains only ABS Informational and
Computational Material shall be filed by the Company with the
Commission not later than the later of the due date for filing
the final Prospectus relating to the Offered Securities pursuant
to Rule 424(b) of the Securities Act Regulations and two business
days after the first use of such Free Writing Prospectus;
(C) Any Free Writing Prospectus required to be filed
pursuant to Section 3(b)(v)(C) shall, if no payment has been made
or consideration has been given by or on behalf of the Company
for the Free Writing Prospectus or its dissemination, be filed by
the Company with the Commission not later than four business days
after the Company becomes aware of the publication, radio or
television broadcast or other dissemination of the Free Writing
Prospectus; and
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(D) The Company shall not be required to file (1) Issuer
Information contained in any Free Writing Prospectus of an
Underwriter or any other offering participant other than the
Company, 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 (2) 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.
(vii) 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.
(viii) Notwithstanding the provisions of Section 3(b)(vii), each
Underwriter shall file with the Commission any Free Writing Prospectus
for which such Underwriter 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 Company or
any other offering participant that is in the business of publishing,
radio or television broadcasting or otherwise disseminating written
communications and for which no payment was made or consideration
given by or on behalf of the Company or any other offering
participant, not later than four business days after such Underwriter
becomes aware of the publication, radio or television broadcast or
other dissemination of the Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 3(b)(v) and
3(b)(vii), neither the Company nor any Underwriter shall 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.
(x) The Company and each Underwriter each agree that any Free
Writing Prospectuses prepared by it shall contain the following
legend:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this communication
relates. Before you invest, you should read the prospectus in that
registration statement and other documents the depositor has filed
with the SEC for more complete information about the depositor, the
issuing trust, and this offering. You may get these documents for free
by visiting XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively,
the depositor, 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[xx-xxx-xxxx].
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(xi) The Company and each Underwriter agree to retain all Free
Writing Prospectuses that they have used and that are not required to
be filed pursuant to this Section 3 for a period of three years
following the initial bona fide offering of the Offered Securities.
(A) In the event that any Underwriter becomes aware that, as
of the Time of Sale, any Free Writing Prospectus prepared by or
on behalf of an Underwriter and delivered to an investor
contained any untrue statement of a material fact or, when read
in conjunction with the other information included in the
Disclosure Package, 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"), such Underwriter shall notify the Company thereof
within one business day after discovery.
(B) Provided that the Defective Free Writing Prospectus was
an Issuer Free Writing Prospectus or contained Issuer
Information, such Underwriter shall, if requested by the Company:
(1) 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");
(2) Deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with
such investor; provided if the Time of Sale has occurred
with respect to such investor, the Underwriter shall provide
such investor with (w) adequate disclosure of the
contractual arrangement, (x) adequate disclosure of the
person's rights under the existing contract of sale at the
time termination is sought, (y) adequate disclosure of the
new information that is necessary to correct the
misstatements or omissions in the information given at the
time of the original contract of sale, and (z) a meaningful
ability to elect to terminate or not to terminate the prior
contract of sale and to elect to enter into or not enter
into a new contract of sale; and
(3) In the event that the Defective Free Writing
Prospectus was an Issuer Free Writing Prospectus or
contained Issuer Information, and the Underwriters shall in
good faith incur any costs to any investor in connection
with the reformation of the contract of sale with the
investor, the Company agrees to reimburse the Underwriters
for such costs; provided that, before incurring such costs,
in Underwriters first permit the Company
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access to the applicable investor and an opportunity to
attempt to mitigate such costs through direct negotiation
with such investor.
(xii) Each Underwriter covenants with the Company that after the
final Prospectus is available such Underwriter shall not distribute
any written information concerning the Offered Securities to a
prospective investor unless such information is preceded or
accompanied by the final Prospectus.
(xiii) Each Underwriter covenants and agrees with the Company
that it shall not accept any offer to purchase Offered Securities
until the time at least 24 hours after the time the related offeree
received the Preliminary Prospectus, or such shorter period as such
Underwriter and the Company shall agree.
(c) Each Underwriter has furnished or will furnish the Disclosure
Package to purchasers of the Offered Securities prior to the Time of Sale.
(d) Each Underwriter represents and agrees that:
(i) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated an invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the Financial Services and Markets Act) received by it
in connection with the issue or sale of the Offered Securities in
circumstances in which Section 21(1) of the Financial Services and
Markets Act does not apply to the Issuer;
(ii) it has complied and will comply with all applicable
provisions of the Financial Services and Markets Act with respect to
anything done by it in relation to the Offered Securities in, from or
otherwise involving the United Kingdom; and
(iii) in relation to each Member State of the European Economic
Area which has implemented the Prospectus Directive (each, a "RELEVANT
MEMBER STATE"), with effect from and including the date on which the
Prospectus Directive is implemented in that Relevant Member State (the
"RELEVANT IMPLEMENTATION DATE") it has not made and will not make an
offer of Offered Securities to the public in that Relevant Member
State prior to the publication of a prospectus in relation to the
Offered Securities which has been approved by the competent authority
in that Relevant Member State or, where appropriate, approved in
another Relevant Member State and notified to the competent authority
in that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of the Offered Securities
to the public in that Relevant Member State at any time:
(x) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
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(y) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year;
(2) a total balance sheet of more than (euro)43,000,000 and (3)
an annual net turnover of more than (euro)50,000,000, as shown in
its last annual or consolidated accounts; or
(z) in any other circumstances which do not require the
publication by the Issuer of a prospectus pursuant to Article 3
of the Prospectus Directive.
For the purposes of this provision, the expression an "offer of securities to
the public" in relation to any Offered Securities in any Relevant Member State
means the communication in any form and by any means of sufficient information
on the terms of the offer and the securities to be offered so as to enable an
investor to decide to purchase or subscribe the securities, as the same may be
varied in that Member State by any measure implementing the Prospectus Directive
in that Member State and the expression "Prospectus Directive" means Directive
2003/71/EC and includes any relevant implementing measure in each Relevant
Member State.
4. Representations and Warranties of the Company.
The Company (or, with respect to Section 4(oo) only, the Sponsor)
represents and warrants to the Underwriters, as of the date of this Agreement,
each Time of Sale (as defined below), and as of the Closing Time, and agrees
with each Underwriter that:
(a) the Offered Securities conform in all material respects to the
description thereof contained in each of the Disclosure Package, the
Registration Statement and the Prospectus, and each of the Certificates,
when validly authenticated, issued and delivered in accordance with the
Pooling and Servicing Agreement, will be duly and validly issued and
outstanding, will constitute the legal, valid and binding obligations of
the Issuing Entity, enforceable in accordance with their terms, subject, as
to enforceability, to bankruptcy, insolvency and similar laws affecting the
rights of creditors generally and to general principles of equity, and will
be entitled to the benefits and security afforded by the Pooling and
Servicing Agreement;
(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 each
of the Disclosure Package, the Registration Statement and the Prospectus,
and is duly qualified as a foreign entity to transact business or is
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 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
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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 the complete
Disclosure Package and complete manually signed copies 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 Prospectus, as amended or supplemented, in such
quantities and at such places as the Representative has reasonably
requested for delivery to each of the Underwriters;
(d) 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; any Preliminary
Prospectus when filed with the Commission, and the Registration Statement
as of each effective date and as of the date hereof, complied or will
comply, and the Prospectus and any further amendments or supplements to the
Registration Statement, the Preliminary Prospectus or the Prospectus will,
when they 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, and the Registration
Statement, as of each effective date, did not, and as of the date hereof
does not and as of each Time of Sale and as of the Closing Time will not,
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and the Preliminary Prospectus does not, and the
Prospectus or any amendment or supplement thereto will not, as of the date
of the Preliminary Prospectus Supplement, the applicable filing date, and
at the Closing Time, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement, the Preliminary Prospectus or 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 thereof or any revision or amendment thereof or
supplement thereto (that information being limited to that described in the
next to last sentence of the first paragraph of Section 10(b) hereof), or
any information in any Free Writing Prospectus required to be provided by
any Underwriter pursuant to Section 3(b), except to the extent that such
information constitutes Pool Information or Issuer Information supplied to
such Underwriter by the Company. As used herein, "POOL INFORMATION" means
information with respect to the assumed characteristics of the Mortgage
Loans and administrative and servicing fees. The Company acknowledges that
the Underwriter Information (as defined herein) constitutes the only
information furnished in writing by any Underwriter or on behalf of any
Underwriter for use in
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connection with the preparation of the Registration Statement or the
Prospectus Supplement. There are no contracts or documents of the Company
which are required to be filed as exhibits to the Registration Statement
pursuant to the Securities Act or the Securities Act Regulations which have
not been so filed or incorporated by reference therein on or prior to the
effective date of the Registration Statement. The conditions for use of
Form S-3, as set forth in the General Instructions thereto, have been
satisfied;
(e) as of __:___ [a.m./p.m.] (Eastern time), ___________ 200__ (the
"INITIAL SALE TIME"), the Disclosure Package did not, and at the time of
each sale of Offered Securities (including the Initial Sale Time, each, a
"TIME OF SALE") and at the Closing Time, the Disclosure Package will not,
contain any untrue statement of a material fact or omit 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;
other than the Preliminary Prospectus and the Prospectus, the Company
(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 of the Securities
Act Regulations) that constitutes an offer to sell or solicitation of an
offer to buy the Offered Securities other than (i) the Series Term Sheet
dated as of _______200__ (the "SERIES TERM SHEET"), (ii) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities
Act or Rule 134 of the Securities Act Regulations or (iii) the documents
listed on Schedule III hereto and other written communication approved in
writing in advance by the Company; each such Issuer Free Writing Prospectus
complied in all material respects with the Securities Act, has been filed
in accordance with Section 3 (to the extent required thereby) and did not
at any Time of Sale, and at the Closing Date will not, contain any untrue
statements of a material fact or (when read in conjunction with the other
information included in the Disclosure Package) 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
Company makes no representation and warranty with respect to any statements
or omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter expressly for use in any Issuer Free Writing Prospectus; and as
of its issue date or date of first use and at all subsequent times through
the Initial Sale Time, each Issuer Free Writing Prospectus did not, and at
each Time of Sale and at the Closing Time, each such Issuer Free Writing
Prospectus will not, contain any untrue statement of a material fact or
(when read in conjunction with the other information included in the
Disclosure Package) omit 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; provided, however, that the Company makes
no warranty or representation with respect to any statement contained in or
omitted from the Disclosure Package 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 therein (that information being limited to that described
in the next to last sentence of the first paragraph of Section 10(b)
hereof);
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(f) each Issuer Free Writing Prospectus, as of its issue date and at
all subsequent times through the completion of the public offer and sale of
the Offered Securities did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement or the Prospectus,
including any document incorporated by reference therein that has not been
superseded or modified;
(g) the Company is eligible to use Free Writing Prospectuses in
connection with the offering contemplated hereby pursuant to Rules 164 and
433 of the Securities Act Regulations; any Free Writing Prospectus that the
Company is required to file pursuant to Rule 433(d) under the Securities
Act Regulations has been, or will be, filed with the Commission in
accordance with the requirements of the Securities Act and the Securities
Act Regulations; and each Free Writing Prospectus that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities
Act Regulations or that was prepared by or on behalf of or used by the
Company complies or will comply in all material respects with the
requirements of the Securities Act and the Securities Act Regulations;
(h) except for the Issuer Free Writing Prospectuses identified in
Schedule III hereto, the Company has not prepared, used or referred to, and
will not, without the prior consent of the Representative, prepare, use or
refer to, any Free Writing Prospectus;
(i) the Preliminary Prospectus, the Prospectus and any Issuer Free
Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus
was required to be filed with the Commission) delivered to the Underwriters
for use in connection with the public offering of the Offered Securities
contemplated herein have been and will be identical to the versions of such
documents 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;
(j) the Company filed the Registration Statement with the Commission
before using any Issuer Free Writing Prospectus;
(k) the Company has not distributed and will not distribute, prior to
the completion of the Underwriters' distribution of the Offered Securities,
any prospectus or other offering materials in connection with the offering
and sale of the Offered Securities other than the Disclosure Package, the
Prospectus or the Registration Statement;
(l) after the date of the Preliminary Prospectus the Company has not
delivered and will not deliver any written communication to any third
parties in connection with the initial offering of the Offered Securities
other than the Preliminary Prospectus and the Prospectus;
(m) 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;
12
(n) the Company is not in violation of its certificate of
incorporation, as amended or restated (the "CERTIFICATE OF INCORPORATION"),
or its bylaws, and 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;
(o) the execution, delivery and performance of this Agreement and each
other Transaction Document, the issuance, sale and delivery by the Company
of the Offered Securities and the consummation of the transactions
contemplated herein and therein 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, Pooling and Servicing Agreement, 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;
(p) this Agreement has been, and the other Transaction Documents at
the Closing Time shall have been duly authorized, executed and delivered by
the Company and constitute legal, valid and binding agreements of the
Company, and such other Transaction Documents are enforceable in accordance
with their terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and by general equitable principles;
(q) as of the Closing Date, this Agreement and the other Transaction
Documents conform in all material respects to the descriptions thereof
contained in the Registration Statement and Prospectus. On the Closing
Date, the Issuing Entity will be a valid New York common law trust;
(r) the Company has the full legal right, corporate power and
authority to enter into this Agreement and the other Transaction Documents
and to consummate the transactions contemplated herein and therein, and the
Company has the corporate power to sell and deliver the Offered Securities
as provided herein;
(s) upon execution and delivery of the Pooling and Servicing
Agreement, (i) immediately prior to their transfer to the Issuing Entity,
the Company will own the Mortgage Loans being transferred to the Issuing
Entity pursuant thereto, free and clear of any lien, charge, encumbrance,
adverse claim or other security interest, except to the extent permitted in
the Pooling and Servicing Agreement, and will not have assigned to
13
any person other than the Issuing Entity any of its right, title or
interest in the Mortgage Loans, (ii) the Company will have the power and
authority to transfer the Mortgage Loans to the Issuing Entity and to
transfer the Offered Securities to the several Underwriters, (iii) upon
their transfer to the Issuing Entity, the Issuing Entity will own the
Mortgage Loans free of liens, other than liens permitted by the Pooling and
Servicing Agreement, and (iv) upon payment and delivery of the Offered
Securities to the several Underwriters, the several Underwriters will
acquire ownership of their respective Offered Securities, free of any lien,
charge, encumbrance, adverse claim or other security interest, except to
the extent permitted by the Pooling and Servicing Agreement;
(t) any taxes, fees and other governmental charges in connection with
the execution, delivery and performance of this Agreement and the other
Transaction Documents and the issuance of the Offered Securities have been
or will be paid by the Company on or prior to the Closing Date, except for
fees for recording assignments of the Mortgage Loans to the Issuing Entity
pursuant to the Pooling and Servicing Agreement, that have not yet been
completed, which fees will be paid in accordance with the Pooling and
Servicing Agreement;
(u) each of the Interim Servicer and the Servicer is qualified to do
business in all jurisdictions in which its activities as interim servicer
or servicer of the Mortgage Loans require such qualification except where
failure to be so qualified will not have a material adverse effect on such
servicing activities;
(v) 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 or any other
Transaction Document, its consummation of the transactions contemplated
herein or therein, 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"), 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;
(w) 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 each of the Disclosure Package, the Registration Statement
and the 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 in violation of, in default under, nor has the Company
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, individually or in the aggregate, in a Material
14
Adverse Change; and no such license, authorization, consent or approval
contains a materially burdensome restriction that is not adequately
disclosed in each of the Disclosure Package, the Registration Statement and
the Prospectus;
(x) each document incorporated by reference in the Registration
Statement, the Prospectus or the Disclosure Package, 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 (as defined herein), 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 Registration Statement, the Prospectus, or
the Disclosure Package 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, as applicable, 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;
(y) 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 have 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 tax
attributes of the Offered Securities as described in each of the Disclosure
Package and the Prospectus or the consummation of the transactions
contemplated by this Agreement or the Transaction Documents;
(z) subsequent to the respective dates as of which information is
given in each of the Registration Statement, the Prospectus and the
Disclosure Package, and except as may be otherwise stated in each such
document, 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,
or (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;
(aa) the sale of the Offered Securities to the several Underwriters
hereunder has been duly authorized by the Company, and, when issued,
authenticated and duly
15
delivered against payment therefore as contemplated by this Agreement, will
be enforceable in accordance with their terms, and will be duly issued and
outstanding and entitled to the benefits of the Pooling and Servicing
Agreement;
(bb) 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;
(cc) the Company is not 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");
(dd) the Company has not relied upon the Representative or any other
Underwriter for any legal, tax or accounting advice in connection with the
offering and sale of the Offered Securities;
(ee) 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;
(ff) the form of certificate or note used to evidence the Offered
Securities complies in all material respects with all applicable statutory
requirements and with any applicable requirements of the Pooling and
Servicing Agreement;
(gg) the descriptions in each of the Registration Statement, the
Prospectus and the Disclosure Package of the legal or governmental
proceedings, contracts and other legal documents therein described present
fairly the information required to be shown, and there are no legal or
governmental proceedings, contracts or other documents of a character
required to be described in the Registration Statement, the Prospectus or
the Disclosure Package or to be filed as exhibits to the Registration
Statement which are not described or filed as required; and all agreements
between the Company and third parties expressly referenced in the
Registration Statement, the Prospectus or the Disclosure Package 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;
(hh) 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 has properly requested extensions thereof
and has 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
16
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;
(ii) all securities issued by the Company, or any issuing entities
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;
(jj) assuming compliance by the Underwriters with their obligations
under the Securities Act, in connection with the offering contemplated
herein, the Company has not offered and will not offer the Offered
Securities in a manner in violation of the Securities Act;
(kk) except as otherwise disclosed in the Disclosure Package and 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;
(ll) none of the Company, any subsidiary of the Company or the Issuing
Entity is, or 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");
(mm) it is not necessary to qualify the Pooling and Servicing
Agreement under the Trust Indenture Act of 1939, as amended;
(nn) 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;
(oo) (A) the representations and warranties made by (1) the Seller in
Section [__] of the Pooling and Servicing Agreement, and (2) the Seller in
Section [__] and in Schedule [__] of the Pooling and Servicing Agreement
with respect to the Mortgage Loans are true and correct and are hereby made
for the benefit of each of the Underwriters as if fully set forth herein;
provided, however, that if any of the representations and warranties of the
Seller in Schedule [__] of the Pooling and Servicing Agreement with respect
to a Mortgage Loan is breached, it shall not be considered to be breached
unless the Seller is required to cure such breach and fails to do so in
compliance with the Pooling and Servicing Agreement through cure,
repurchase, substitution or otherwise; and (B) this Agreement has been duly
authorized, executed and delivered by the Seller for the limited purpose
specified in the signature page hereto and is the legal, valid and binding
agreement of the Seller 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
17
(pp) the Company is not, and on the date on which the first bona fide
offer (within the meaning of Rule 164(h)(2) of the Securities Act
Regulations) of the Offered Securities is made will not be, an "ineligible
issuer," as defined in Rule 405 of the Securities Act Regulations.
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 of those jurisdictions designated by the Representative; that the
Company 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 to cause to be transmitted to the Commission for filing pursuant to
Rule 424(b) of the Securities Act Regulations by means reasonably
calculated to result in filing with the Commission pursuant to said rule;
which Prospectus and Issuer Free Writing Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
version transmitted to the Commission for filing via XXXXX, except to the
extent permitted by Regulation S-T;
(d) the Company will furnish to each Underwriter, from time to time
during the period when a prospectus relating to the Offered Securities is
required to be delivered under the Securities Act, such number of copies of
the Prospectus and each Free Writing Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the Securities Act or the Exchange Act or the respective
applicable rules and regulations of the Commission thereunder;
18
(e) to furnish a copy of each proposed Free Writing Prospectus to the
Representative and counsel for the Underwriters and obtain the consent of
the Representative prior to referring to, using or filing with the
Commission any Free Writing Prospectus pursuant to Rule 433(d) under the
Securities Act, other than the Issuer Free Writing Prospectuses, if any,
identified in Schedule III hereto;
(f) to comply with the requirements of Section 3 hereof and Rules 164
and 433 of the Securities Act Regulations applicable to any Issuer Free
Writing Prospectus, including timely filing pursuant to Rule 433 with the
Commission (by means reasonably calculated to result in filing with the
Commission pursuant to said Rule), legending and record keeping, as
applicable;
(g) that, for a period of 90 days after the date of this Agreement or
such earlier date as each Underwriter shall have resold all of the Offered
Securities underwritten by it, 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 or
any request by the Commission for amendments or supplements to the
Registration Statement, the Preliminary Prospectus, the Prospectus or any
Issuer Free Writing Prospectus, (ii) of the time and date of any filing of
any post-effective amendment to the Registration Statement or any amendment
or supplement to the Preliminary Prospectus, the Prospectus or any Issuer
Fee Writing 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 the Preliminary Prospectus,
the Prospectus or any Issuer Fee Writing 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, within such period, advise the Representative
promptly of any proposal to prepare, use, authorize, approve or file any
amendment or supplement to the Registration Statement, Preliminary
Prospectus, the Prospectus or any Issuer Free Writing Prospectus, shall
furnish to the Representative for review a copy of each proposed amendment
or supplement a reasonable amount of time prior to such proposed filing or
use, as the case may be, and the Company will not prepare, use, authorize,
approve, refer to or file any such Issuer Free Writing Prospectus or file
any such amendment or supplement or use any such Prospectus to which the
Representative shall reasonably object; additionally, the Company agrees
that it shall comply with the provisions of Rules 424(b) 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;
(h) to furnish to the Representative for a period of five years from
the date of this Agreement (i) as soon as available, copies of all annual,
quarterly and current reports or other communications supplied to holders
of Offered Securities, (ii) as soon as practicable after the filing
thereof, copies of all reports filed by the Company with the Commission or
any securities exchange and (iii) such other information as the
Representative may reasonably request regarding the Company;
19
(i) to advise the Representative promptly of the happening of any
event known to the Company within the time during which a Prospectus
relating to the Offered Securities (or in lieu thereof the notice referred
to in Rule 173(a) under the Securities Act Regulations) 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, (i) would require the making of any change in
the Prospectus or the Disclosure Package then being used so that the
Prospectus or Disclosure Package would not, at the time it is delivered to
a purchaser, 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, (ii) as a result of which any Issuer Free
Writing Prospectus conflicted or would conflict with the information
contained in the Registration Statement relating to the Offered Securities,
or (iii) if it is necessary at any time to amend or supplement the
Prospectus or the Disclosure Package 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 or supplement to the
Prospectus or the Disclosure Package so that the Prospectus or the
Disclosure Package as so amended or supplemented will not, in the light of
the circumstances when it (or in lieu thereof the notice referred to in
Rule 173(a) under the Securities Act Regulations) is so delivered, be
misleading, or in the case of any Issuer Free Writing Prospectus, conflict
with the information contained in the Registration Statement, or so that
the Prospectus or the Disclosure Package, as amended or supplemented, will
comply with the law;
(j) to file promptly with the Commission any amendment or supplement
to the Registration Statement, any Preliminary Prospectus, the Prospectus
or any Issuer Free Writing Prospectus that may, in the judgment of the
Company or the Representative, be required by the Securities Act or
requested by the Commission;
(k) that, prior to filing with the Commission any amendment or
supplement to the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Issuer Free Writing Prospectus, 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;
(l) 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;
(m) to furnish to the Representative, not less than two business days
before filing with the Commission during the period referred to in
paragraph (g) above, a copy of any document proposed to be filed with the
Commission pursuant to Section 13, 14, or
20
15(d) of the Exchange Act and during the period of five years hereafter to
file all such documents and reports in the manner and within the time
periods required by the Exchange Act and the Exchange Act Regulations;
(n) 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 (other than the Underwriters as disclosed in the
each of the Disclosure Package and Prospectus) 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;
(o) that the Company will comply with all of the provisions of any
undertakings in the Registration Statement and apply the net proceeds from
the sale of the Offered Securities in the manner set forth therein and in
the each of the Disclosure Package and the Prospectus;
(p) 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;
(q) to the extent, if any, that any rating provided with respect to
the Offered Securities by the applicable rating agency is conditional upon
the furnishing of documents or the taking of any actions by the Company or
any of its affiliates, the Company, shall furnish, or cause to be
furnished, such documents and take, or cause to be taken, any such other
actions; and
(r) the Company shall obtain a letter from [_____________], certified
public accountants, satisfactory in form and substance to the Company and
the Underwriters, to the effect that such accountants have performed
certain specified procedures, all of which have been agreed to by the
Company and the Underwriters, as a result of which they have determined
that the information included in the Disclosure Package that the
accountants have examined in accordance with such agreed upon procedures,
is accurate except as to such matters that are not deemed by the Company or
the Underwriters to be material.
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, if any, the
Prospectus, any Issuer Free Writing
21
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 fees, costs and expenses of the Trustee (to the extent
permitted under the Pooling and Servicing Agreement, and except to the
extent that another party is obligated to pay such amounts thereunder
or otherwise agreed by such party in writing),
(vi) any fees and expenses of any rating agency issuing a rating
in respect of the Offered Securities,
(vii) the printing 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),
(viii) 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,
(ix) the fees and expenses of any transfer agent or registrar for
the Offered Securities and miscellaneous expenses referred to in the
Registration Statement,
(x) making road show presentations with respect to the offering
of the Offered Securities (if applicable),
(xi) preparing and distributing bound volumes of transaction
documents for the Representative and its legal counsel, and
(xii) the performance of the Company's other obligations
hereunder. Upon the request of the Representative, the Company will
provide funds in advance for filing fees.
22
(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, which shall be reimbursed by the
Company pursuant to the provisions of subsection (a) above).
(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.
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 and the Seller
hereunder on the date hereof, the Initial Sale Time 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 at the Closing
Time the opinions of Hunton & Xxxxxxxx LLP, counsel for the Company, the
Seller and the Sponsor (and the Representative shall have received an
additional executed original copy of such counsel's legal opinion for each
of the several Underwriters), addressed to the Underwriters and dated the
Closing Time, and, in each case, in form and substance satisfactory to the
Underwriters and to the effect set forth in Exhibit A hereto; in rendering
such opinion such counsel shall also state that nothing has come to their
attention which would cause them to believe that (i) either the
Registration Statement, any amendment thereto, or any document deemed to be
a part thereof, at the time of any effective date applicable thereto,
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 in the Registration Statement not misleading; or (ii) 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; or (iii) the Disclosure Package
as of the Initial Sale Time contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of circumstances under which they were
made, not misleading (it being understood that such counsel need express no
belief as to any third-party information or the financial
23
statements or schedules or other financial and statistical data derived
therefrom, included or incorporated by reference in the Registration
Statement, the Prospectus, the Disclosure Package or any amendments or
supplements thereto).
(b) The Representative shall have received copies of any opinions of
counsel to the Company supplied to the rating organizations or the Trustee,
relating to certain matters with respect to the Offered Securities. Any
such opinions shall be dated the Closing Date and addressed to the
Underwriters or accompanied by reliance letters addressed to the
Underwriters;
(c) The Securities Administrator and Master Servicer shall have
furnished to the Underwriters an opinion dated the Closing Date, of counsel
to the Securities Administrator and Master Servicer (who may be an employee
of the Securities Administrator and Master Servicer) addressed to the
Underwriters and in form and substance satisfactory to the Representative
and counsel to the Underwriters;
(d) The Underwriters have received a favorable opinion addressed to
them, dated the Closing Date, from [__________________________], counsel to
[__________________________], the Trustee, in form and substance
satisfactory to the Representative and counsel to the Underwriters, to the
effect that the Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee and constitutes the legal, valid,
binding and enforceable agreement of the Trustee, subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights in general and by general
principles of equity regardless of whether enforcement is considered in a
proceeding in equity or at law, and as to such other matters as may be
agreed upon by the Representative and the Trustee;
(e) The Servicer shall have furnished to the Underwriters an opinion
dated the Closing Date, of counsel to the Servicer (who may be an employee
of the Servicer) addressed to the Underwriters and in form and substance
satisfactory to the Representative and counsel to the Underwriters;
(f) The Cap Provider shall have furnished to the Underwriters an
opinion dated the Closing Date, of counsel to the Cap Provider (who may be
an employee of the Cap Provider) addressed to the Underwriters and in form
and substance satisfactory to the Representative and counsel to the
Underwriters;
(g) The Company shall have furnished to the Representative such
further information, certificates, opinions and documents as the
Representative may reasonably have requested, and all proceedings in
connection with the transactions contemplated by this Agreement and all
documents incident hereto shall be in all material respects satisfactory in
form and substance to the Representative and counsel to the Underwriters;
(h) On the date of this Agreement, the date of the Prospectus and at
the Closing Time, [_____________] shall furnish to the Underwriters a
letter or letters, dated respectively as of the respective dates of
delivery substantially in the forms of the drafts
24
to which the Representative will have previously agreed and otherwise in
form and substance satisfactory to the Representative and to counsel to the
Underwriters;
(i) No amendment or supplement to the Registration Statement, the
Prospectus or any shall have been filed to which the Underwriters shall
have objected in writing;
(j) Prior to the Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement, or any post-effective
amendment to the Registration Statement or any order preventing or
suspending the use of the Prospectus or any document in the Disclosure
Package shall have 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; (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; and (iv)
the Disclosure Package shall not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(k) Prior to the Closing Time, the Company shall have filed the
Prospectus and each Issuer Free Writing Prospectus shall have been filed or
transmitted for filing by means reasonably calculated to result in a filing
with the Commission pursuant to Rule 424(b) of the Securities Act
Regulations (in the case of an Issuer Free Writing Prospectus, to the
extent required by Rule 433 of the Securities Act Regulations).;
(l) 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 or the delivery of the Offered Securities
as contemplated by the Registration Statement, the Disclosure Package
(excluding Corrective Information) and the Prospectus;
(m) Between the time of execution of this Agreement and the Closing
Time, there shall not have occurred any downgrading, withdrawal or
qualification, 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;
25
(n) 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 Registration Statement, the Prospectus, the
Disclosure Package, any amendment or supplement thereto 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
thereof, 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 thereof;
(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 as of the
Closing Time;
(iii) when the Registration Statement became effective and at all
times subsequent thereto up to the Closing Time, the Registration
Statement, the Prospectus and the Preliminary 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 (other than any Computational
Materials or ABS Term Sheets incorporated therein by reference) 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; the Disclosure Package, and any
amendments or supplements thereto, did not as of any Time of Sale and
as of the Closing Time does 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
supplement to the Prospectus or the Disclosure Package which has not
been so set forth; and
(iv) subsequent to the respective dates as of which information
is given in the Registration Statement, the Prospectus and the
Disclosure Package, there has not been any Material Adverse Change.
(o) The Seller shall have furnished to the Representative a
certificate, dated the Closing Date, of the Seller, signed by a vice
president or an assistant vice president of the Seller, to the effect that
(i) the signer of such certificate has carefully examined the related
Disclosure Package and the related Prospectus and nothing has come to the
26
attention of such person that would lead him to believe that such
Disclosure Package or the Prospectus contains any untrue statement of a
material fact with respect to the Seller or the Mortgage Loans or omits to
state any material fact with respect to the Seller or the Mortgage Loans
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 (ii) the Seller has complied with all agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to such Closing Date under this Agreement, and the other Transaction
Documents;
(p) The Representatives shall receive, at the Closing Time a
certificate of the Secretary of the Company certifying as to (1) the
Certificate of Incorporation and any amendments thereto, (2) the bylaws and
any amendments thereto, and (3) resolutions of the board of directors of
the such entity authorizing the execution and delivery of this Agreement
and the other Transaction Documents to which it is party and, with respect
to the Company, a specimen of the Offered Securities certificate;
(q) 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, the Prospectus and the Disclosure
Package, the representations, warranties and statements of the Company and
the Seller 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 Representative may reasonably
request;
(r) 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 the reasonable judgment
of the Representative 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 Disclosure Package and the Prospectus;
(s) The Offered Securities shall be rated not lower than the required
ratings set forth under the heading "Ratings" in the Disclosure Package and
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); and
(t) The Underwriters shall have received evidence satisfactory to the
Representative and counsel to the Underwriters that, on or before the
Closing Date, UCC-1 financing statements have been or are being filed (a)
in the office of the Secretary of State of the State of Florida reflecting
the transfer of the interest of the Seller in the Mortgage Loans and the
proceeds thereof to the Company, and (b) in the office of the Secretary of
State of the State of Delaware the transfer of the interest of the Company
in the Mortgage Loans and the proceeds thereof to the Trust, and the pledge
of such interest to the Trustee for the benefit of the Certificateholders.
8. Termination.
27
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,
(a) 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
(b) if there has been, in the judgment of the Representative, since
the respective dates as of which information is given in the Registration
Statement, the Prospectus or the Disclosure Package, any Material Adverse
Change, or any development involving a prospective Material Adverse Change,
or any comparable adverse change with respect to the Seller, the Interim
Servicer or the Servicer, whether or not arising in the ordinary course of
business, or
(c) 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 or inadvisable to market the Offered
Securities in the manner and on the terms described in each of the Offering
Package and the Prospectus or enforce contracts for the sale of the Offered
Securities, or
(d) 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
(e) the Company, the Seller, the Interim Servicer, and the Servicer
shall have sustained a loss by strike, fire, flood, earthquake, accident or
other calamity of such character as in the judgment of the Representative
may interfere materially with the conduct of the business and operations of
the Company, the Seller, the Interim Servicer or the Servicer 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 10 hereof)
and the Underwriters shall be under no obligation or liability to the Company
under this Agreement (except to the extent provided in Section 10 hereof) or to
one another hereunder.
9. Increase in Underwriters' Commitments.
28
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 36 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 10 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, the Prospectus, the Disclosure Package
and other documents may be effected.
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.
10. Indemnity and Contribution by the Company and the Underwriters.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its officers, directors, employees and agents, 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, controlling person, or other 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
29
breach of any representation, warranty or covenant of the Company or the
Seller contained herein, (ii) in whole or in part upon any failure on the
part of the Company or the Seller 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 Disclosure Package or the
Prospectus, (iii) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereof), or the omission or alleged omission to state therein 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, (iv) any untrue statement or alleged untrue statement of a
material fact contained in the Disclosure Package or any Issuing Entity
Information contained in any Free Writing Prospectus prepared by or on
behalf of the Underwriter, or the omission or alleged omission to state a
material fact required to make the statements therein (when read in
conjunction with the other information included in the Disclosure Package),
in light of the circumstances under which they were made, not misleading,
which was not corrected by Corrective Information subsequently supplied by
the Company to the Underwriter at any time prior to the applicable Time of
Sale, (v) any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (the term Prospectus for the purpose of
this Section 10 being deemed to include the Base Prospectus, any
Preliminary Prospectus and the Prospectus) or any amendment or supplement
thereto, or the omission or alleged omission to state therein a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (vi) 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) or (v) above, provided
that the Company shall not be liable under this clause (vi) 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 (in the case of clause (iii), (iv) or
(v) above) insofar as any such loss, expense, liability, damage or claim
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 any Underwriter
through the Representative to the Company expressly for use in such
Registration Statement, Disclosure Package or Prospectus, except to the
extent such material misstatement or omission is based upon errors in Pool
Information or Issuer Information. The indemnity agreement set forth in
this Section 10(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
30
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, to the same extent as the indemnity
set forth in Sections 10(a)(iii) and 10(a)(iv) above from the Company to
each Underwriter, but only with respect to Underwriter Information (as set
forth below) and any Free Writing Prospectus prepared by or on behalf of
such Underwriter, as applicable, except to the extent of any errors that
are caused by errors in the Pool Information; provided, that no Underwriter
shall be obligated to so indemnify and hold harmless to the extent such
expenses, losses, claims, damages and other liabilities are caused by a
misstatement or omission resulting from an error or omission in the Issuer
Information supplied by the Company to the Underwriter which was not
corrected by Corrective Information subsequently supplied by the Company to
the Underwriter at any time prior to the applicable Time of Sale. The
Company hereby acknowledges that the statements set forth in the second
paragraph 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(d) and this Section 10 (the "UNDERWRITER INFORMATION"). The
indemnity agreement set forth in this Section 10(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
31
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 10 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 party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by Sections 10(a) and (b) 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 10 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a), (b) and (c) of this Section 10 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 and the Seller 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
32
the relative fault of the Company and the Seller 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 10(a) and (b) with respect to notice of commencement of any action
shall apply if a claim for contribution is to be made under this Section
10(d); provided, however, that no additional notice shall be required with
respect to any action for which notice has been given under Section (a) and
(b) for purposes of indemnification.
(e) The Company, and the Underwriters agree that it would not be just
and equitable if contribution pursuant to Section 10(d) 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 10, no Underwriter shall be required to contribute or otherwise be
responsible for 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 10 are several in proportion to their respective underwriting
commitments and not joint. For purposes of this Section 10, 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.
(f) The Seller agrees with each Underwriter, for the sole and
exclusive benefit of such Underwriter and each person who controls an
Underwriter within the meaning of either the Securities Act or the Exchange
Act and not for the benefit of any assignee thereof or any other person or
persons dealing with such Underwriter, to indemnify and hold
33
harmless each Underwriter and each person who controls an Underwriter
within the meaning of either the Securities Act or the Exchange Act against
any failure by the Company to perform any of its obligations under Section
6 and Section 10 of this Agreement. The Seller agrees that there are no
conditions precedent to the obligations of the Seller hereunder other than
written demand to the Seller to perform its obligations under this
Agreement.
(g) Each Underwriter (the "INDEMNIFYING UNDERWRITER") will indemnify
and hold harmless the other Underwriters and each person, if any, who
controls such Underwriter within the meaning of either the Securities Act
or the Exchange Act (the "NON-INDEMNIFYING UNDERWRITER") from and against
any and all losses, claims, damages or liabilities, joint or several, to
which the Non-Indemnifying Underwriter becomes subject under the Securities
Act, the Exchange Act or other federal or state statutory law or
regulation, common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a
material fact or the omission or alleged omission (when read in conjunction
with the Disclosure Package) to state a material fact necessary in order to
make the statements, in the light of the circumstances under which they
were made, not misleading at the Time of Sale, contained in any Free
Writing Prospectus prepared by, or on behalf of, or used or referred to by,
such Indemnifying Underwriter or (ii) the failure of such Indemnifying
Underwriter, or any member of its selling group, to comply with any
provision of Section 3(b), and agrees to reimburse such Non-Indemnifying
Underwriter, as incurred for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action, except to the extent such losses,
claims, damages or liabilities are caused by a misstatement or omission
resulting from an error or omission in the Issuer Information supplied by
the Company to the Underwriter which was not corrected by Corrective
Information subsequently supplied by the Company to the Underwriter at any
time prior to the Time of Sale. This agreement will be in addition to any
liability that any Underwriter may otherwise have.
11. 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.
12. 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 [___________________], [street],
city, state zip], Attention: [______________]; if to the Company, shall be
sufficient in all respects if delivered to the Company at the offices of
34
the Company at Xxxxx Asset Securitization, Inc., 000 Xxxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: [______________].
13. Governing Law; Headings.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK. The section headings in this Agreement have been
inserted as a matter of convenience of reference and are not a part of this
Agreement.
14. 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 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.
15. 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 10 and 11 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.
16. Role of Underwriters.
The Company acknowledges and agrees that the Underwriters are acting solely
in the capacity of an arm's length contractual counterparty to the Company and
the Seller with respect to the offering of the Offered Securities contemplated
hereby (including in connection with determining the terms of the offering) and
not as a financial advisor or a fiduciary to, or an agent of, the Company, the
Seller, or any other person. Additionally, neither the Representative nor any
other Underwriter is advising the Company, the Seller, or any other person as to
any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company and the Seller shall each consult with its own
advisors concerning such matters and shall be responsible for making their own
independent investigation and appraisal of the transactions contemplated hereby,
and the Underwriters shall have no responsibility or liability to the Company or
the Seller with respect thereto. Any review by the Underwriters of the Company,
the Seller, the transactions contemplated hereby or other matters relating to
such transactions will be performed solely for the benefit of the Underwriters
and shall not be on behalf of the Company or the Seller.
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
35
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.
36
If the foregoing correctly sets forth the understanding among the parties
to this Underwriting Agreement, please so indicate in the space provided below
for the purpose, whereupon this Underwriting Agreement shall constitute a
binding agreement among the parties hereto.
Very truly yours,
XXXXX ASSET SECURITIZATION, INC.
By:
------------------------------------
Name:
Title:
Accepted and agreed with respect to
Section 10(f) and 4(oo) as of the date first above written:
LUMINENT MORTGAGE CAPITAL, 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
UNDERWRITERS
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
SCHEDULE II
To Underwriting Agreement
Underwriting Allocation
CLASS OF CERTIFICATES ALLOCATION
--------------------- ----------
[_____________________]
[_]
[_]
[_]
[_]
[_]
[_]
[_]
[_]
TOTAL
SCHEDULE III
To Underwriting Agreement
Issuer Free Writing Prospectuses
EXHIBIT A-1
Form of Hunton & Xxxxxxxx Enforceability Opinion
EXHIBIT A-2
Form of Hunton & Xxxxxxxx Tax Opinion
