Exhibit 1.1
XXXXX ASSET SECURITIZATION, INC.
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED NOTES, 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
Notes, Series 200_-_, Class __, __ and __ (collectively, the "NOTES"), issued
pursuant to the Indenture dated as of __________, 200_ (the "INDENTURE"), among
the Luminent Mortgage Trust 200_-_ (the "ISSUING ENTITY"), [___________________]
(the "SECURITIES ADMINISTRATOR") and [___________________] (the "INDENTURE
TRUSTEE"), and the purchase by the Underwriters, acting severally and not
jointly, of their respective Class Principal Amounts of the Notes (the "OFFERED
SECURITIES") set forth opposite the names of the Underwriters in Schedule II
hereto. The Issuing Entity is a Delaware statutory trust formed under the laws
of the State of pursuant to a trust agreement, between the
[______________________], as owner trustee (the "OWNER TRUSTEE"), which
agreement will be superseded by the amended and restated owner trust agreement
(the "OWNER TRUST AGREEMENT") dated as of _________________, 200_, among the
Company, the Owner Trustee, and the Securities Administrator. The Mortgage Loans
were acquired by [Maia Mortgage Finance Trust, a Delaware statutory trust] (the
"SELLER") and from a variety of originators (each, an "ORIGINATOR"). The Seller
will sell all the Mortgage Loans to the Company, and the Company will sell all
the Mortgage Loans to the Issuing Entity pursuant to the Transfer and Servicing
Agreement dated as of ______________, 200_ (the "TRANSFER AND SERVICING
AGREEMENT"), among the Issuing Entity, the Indenture Trustee, the Company,
[_________________________], as Securities Administrator and as master servicer
(in such capacity, the "MASTER SERVICER"), [___________________], as servicer
(the "SERVICER"), and the Seller. The Issuing Entity has also entered into a cap
agreement (the "CAP AGREEMENT") with [_______________________], as the cap
provider (the "CAP PROVIDER") dated as of _____________, 200_. The Notes are
expected to be issued on __________________, 200_ (the "CLOSING DATE").
Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed thereto in the Transfer and Servicing Agreement or,
if not defined therein, the Indenture.
This Agreement (as defined below), the Transfer and Servicing Agreement,
the Indenture, the Owner Trust 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).
The Company understands that the Underwriters propose to make a public
offering of the Offered Securities as soon as the Underwriters deem advisable
after this Underwriting Agreement (the "AGREEMENT") has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3 (No. 333-__________ ),
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
2
(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").
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 Class Principal Amounts of the Offered Securities set forth
in Schedule II opposite such Underwriter's name, plus any additional Class
Principal Amounts 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 therefor 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
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 (as defined below), or 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 III.
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, no later
than two business days prior to the date of first use thereof, (a) 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) 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
4
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 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
5
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
(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.
6
(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 1-8[xx-xxx-xxxx].
(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
7
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 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 Issuing
Entity;
(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
8
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;
(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 Issuing Entity 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 Notes, when
validly authenticated, issued and delivered in accordance with the
Indenture, 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
9
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 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
10
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 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
11
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);
(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;
12
(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;
(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, indenture, mortgage, deed of trust, loan or credit
agreement, lease or other agreement or instrument to which the Company is a
party or by which the Company or its properties may be bound or affected,
or (C) under any federal, state, local or foreign law, regulation or rule
or any decree, judgment or order applicable to the Company, except for such
breaches, defaults, conflicts, liens, charges or encumbrances which could
not have a Material Adverse Effect; or (ii) result in the creation or
imposition of any lien, charge, claim or encumbrance upon any property or
asset of the Company;
(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 Owner Trust Agreement Issuing Entity will be effective to
establish the Issuing Entity as a valid statutory trust under the laws of
the State of Delaware;
13
(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 Transfer 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 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 Indenture, 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) the Servicer is qualified to do business in all jurisdictions in
which its activities as 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
14
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 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;
15
(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 delivered against payment therefor 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
Indenture;
(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 Indenture;
(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
16
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 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) the Indenture has been qualified 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 of the Seller in the
Transfer and Servicing Agreement and in Schedule B of the Transfer 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; and (B) this Agreement has been duly authorized, executed
and delivered by the Seller for the limited purpose specified in the
17
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
(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
18
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;
(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
19
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;
(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
20
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 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.
21
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 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 Indenture Trustee and the
Owner Trustee (to the extent permitted under the Transfer and
Servicing Agreement, the Owner Trust Agreement or the Indenture, 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,
22
(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.
(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
23
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 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, and the
Indenture 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 the 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 each of
the Transfer and Servicing Agreement has been duly authorized, executed and
delivered by the Trustee and constitutes the legal, valid, binding and
enforceable agreement of the Indenture 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 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;
24
(g) 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 date substantially in the forms of the drafts to which the
Representative will have previously agreed and otherwise in form and
substance satisfactory to the Representative and to counsel to the
Underwriters;
(h) 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;
(i) 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;
(j) 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);
(k) 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;
(l) 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
25
organization" as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act;
(m) 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.
26
(n) 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
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;
(o) The Representatives shall receive, at the Closing Time a
certificate of the Secretary of each of the Company and the Seller
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;
(p) 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;
(q) 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;
(r) 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);
(s) The Ownership Certificate shall have been issued and delivered to
[_______________];
(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
27
State of the State of Delaware reflecting the transfer of the interest of
the Seller in the Mortgage Loans and the proceeds thereof to the Company,
and 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 Issuing Entity, and the pledge of such interest to
the Indenture Trustee for the benefit of the Noteholders; and
(u) 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.
8. Termination.
The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of the Representative, at any time prior
to the Closing Time,
(i) if any of the conditions specified in Section 7 shall not
have been fulfilled when and as required by this Agreement to be
fulfilled, or
(ii) if there has been, in the judgment of the Representative,
since the respective dates as of which information is given in the
Registration Statement, 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 or the Servicer, whether or not arising in the ordinary
course of business, or
(iii) if there has occurred any outbreak or escalation of
national or international hostilities, other national or international
calamity or crisis (including without limitation any terrorist or
similar attack), any change in the United States or international
financial markets, or any substantial change in United States' or
international economic, political, financial or other conditions, the
effect of which on the financial markets of the United States is such
as to make it, in the judgment of the Representative, impracticable 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
(iv) 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
(v) the Company, the Seller 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 or the Servicer regardless of whether or
not such loss shall have been insured.
28
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.
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.
29
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
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, the 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
30
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 clauses (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 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
31
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
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
32
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 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
33
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 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.
34
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
address], [city], [state] [ZIP], Attention: [______________]; if to the Company,
shall be sufficient in all respects if delivered to the Company at the offices
of the Company at Xxxxx Asset Securitization Inc., 000 Xxxxxxxxxx Xx., 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
35
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 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
Sections 10(f) and 4(oo) as of the date first above written:
[______________________________]
By:
----------------------------
Name:
Title:
Accepted and agreed to as of the date first above written:
[Representative Underwriter]
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 NOTES ALLOCATION
-------------- --------------------------------------------------
[REPRESENTATIVE UNDERWRITER] [OTHER UNDERWRITER]
[-] $ $
[-] $ $
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
