EXECUTION COPY
FIELDSTONE MORTGAGE INVESTMENT CORPORATION
Mortgage-Backed Notes
UNDERWRITING AGREEMENT
July 29, 2005
To the Underwriters identified in the
related Terms Agreement
Ladies and Gentlemen:
1. Introduction. Fieldstone Mortgage Investment Corporation, a Maryland
corporation (the "Depositor"), has authorized the issuance and sale of
Mortgage-Backed Notes (the "Notes") and Mortgage-Backed Certificates (the
"Certificates" and together with the Notes, the "Securities") in one or more
series (each, a "Series"). This Underwriting Agreement (the "Underwriting
Agreement") related to offers and sales of Series of Notes.
Each Note will generally be payable out of the cash flows attributable to
the property of each Trust, which will consist of one or more pools of mortgage
loans (the "Mortgage Loans") and certain related property to be conveyed to the
Trust by the Depositor. The Mortgage Loans may be sold to the Depositor pursuant
to one or more Mortgage Loan Purchase Agreements (each, an "Mortgage Loan
Purchase Agreement"), between the Depositor, as purchaser, Fieldstone Investment
Funding, LLC (the "Transferor") and Fieldstone Investment Corporation, as seller
(the "Seller"). The Notes of any Series will be issued pursuant to a Trust
Agreement (the "Trust Agreement"), a Transfer and Servicing Agreement (the
"Transfer and Servicing Agreement") and an Indenture, among the Trust, the
Depositor, the Seller, the Master Servicer, the Servicer, the Subservicer, the
Owner Trustee, the Indenture Trustee and the Trust Administrator, as applicable.
Capitalized terms used herein and not defined, shall have the meaning set forth
in the Transfer and Servicing Agreement or the related Terms Agreement (as
defined below).
The Notes are more fully described in the Registration Statement (as such
term is defined in Section 2(a)), which the Depositor has furnished to the
Representative (as defined below). Each Series of Notes and any classes or
subclasses of Notes (each, a "Class" or "Subclass", respectively) within such
Series may vary, among other things, as to number and types of Classes or
Subclasses, aggregate class principal amount or class notional amount or
aggregate class principal amount, the interest rate with respect to each Class
or Subclass, the percentage interest if any, entitled by each Class or Subclass
to payments of principal and interest on, or with respect to, the Notes payable
out of cash flows attributable to the Mortgage Loans included in the related
Trust, the class principal amount and interest rate, if any, priority of payment
among Classes or Subclasses, the method of credit enhancement with respect to
the Notes for such Series, the Classes or Subclasses of Notes of such Series
subject to this Agreement, and any other variable terms contemplated by the
Operative Agreements and in the Notes of such Series. For federal income tax
purposes, the Notes will be characterized as debt to the extent they are
issued to parties unrelated to the equity owner of the Trust and are rated at
least "BBB-" or the equivalent by one or more Rating Agencies.
Whenever the Depositor determines to make an offering of Notes pursuant to
this Underwriting Agreement, the Depositor will enter into an agreement (the
"Terms Agreement") providing for the sale of such Notes to, and the purchase and
offering thereof by, an underwriter acting for itself and as the representative
(the "Representative") for the other underwriters, if any, identified in the
related Terms Agreement (in each case, collectively, the "Underwriters") or
through an underwriting syndicate managed by the Representative. The
Representative and any other underwriters identified in the related Terms
Agreement agree to become obligated to purchase Notes from the Depositor. Such
Terms Agreement shall specify the class principal amount or class notional
amount of each Class or Subclass of the Notes to be issued and their terms not
otherwise specified in the Operative Agreements, the Classes or Subclasses of
Notes subject to this Agreement, the price at which such Notes are to be
purchased by the Representative and each of the Underwriters from the Depositor,
the aggregate amount of Notes to be purchased by the Representative and each
Underwriter and any other Underwriter that is a party to such Terms Agreement
and the initial public offering price or the method by which the price at which
such Notes are to be sold will be determined. The Terms Agreement, which shall
be substantially in the form of Exhibit A hereto, which may take the form of an
exchange of any standard form of written telecommunication between the
Representative and the Depositor. Each offering of Notes will be governed by
this Agreement, as supplemented by the applicable Terms Agreement, and this
Agreement and such Terms Agreement shall inure to the benefit of and be binding
upon the Representative and the related Underwriters. Except as otherwise
required by the context, all references herein to a Terms Agreement, Delivery
Date, the related Operative Agreements and Underwriters shall refer to the Terms
Agreement, Delivery Date, the related Operative Agreements and Underwriter or
Underwriters, as the case may be, relating to the related Series of Notes.
2. Representations and Warranties of the Depositor. The Depositor
represents and warrants to the Representative and to each of the Underwriters as
of the date hereof and as of the date of the applicable Terms Agreement, as
follows:
(a) A registration statement on Form S-3 (No. 333-125910) including a
prospectus and such amendments thereto as may have been required on the
date hereof relating to the Notes and the offering of each Series thereof
from time to time in accordance with Rule 415 under the Securities Act of
1933, as amended (the "Act"), has been filed with the Securities and
Exchange Commission (the "Commission") and such registration statement, as
amended, has become effective under the Act. For purposes of this
Agreement, "Effective Time" means the date and time as of which such
registration statement, or the most recent post-effective amendment thereto
(if any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission and "Effective Date" means the date of
the Effective Time. Such registration statement, as amended, and the
prospectus relating to the sale of the Notes of the applicable Series
offered thereby constituting a part thereof, as from time to time amended
or supplemented (including any prospectus relating to the Notes filed with
the Commission pursuant to Rule 424(b) of the rules and regulations of the
Commission promulgated under the Act (the "Rules and Regulations")),
including all documents incorporated
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therein by reference relating to the Series of Notes to which the Terms
Agreement relates, are respectively referred to as the "Registration
Statement" and the "Base Prospectus"; provided, however, that a supplement
to such Base Prospectus prepared pursuant to Section 5(a) shall be deemed
to have supplemented the Base Prospectus only with respect to the offering
of the Series of Notes to which it relates (any such supplement for a
Series of Notes, the "Prospectus Supplement" and together with the Base
Prospectus, the "Prospectus"). Reference made herein to the Prospectus
shall be deemed to refer to and include any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act as of the
date of the Prospectus and any reference to any amendment or supplement to
the Prospectus shall be deemed to refer to and include any document filed
under the Securities Exchange Act of 1934 (the "Exchange Act") after the
date of the Prospectus and incorporated by reference in the Prospectus and
any reference to any amendment to the Registration Statement shall be
deemed to include any report of the Depositor filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective
Time that is incorporated by reference in the Registration Statement. The
Commission has not issued any order preventing or suspending the use of the
Prospectus or the effectiveness of the Registration Statement and no
proceedings for such purpose are pending or, to the Depositor's knowledge,
threatened by the Commission. There are no contracts or documents of the
Depositor which are required to be filed as exhibits to the Registration
Statement pursuant to the Securities Act or the Rules and Regulations which
have not been so filed or incorporated by reference therein on or prior to
the Effective Date of the Registration Statement other than such documents
or materials, if any, as the Representative delivers to the Depositor
pursuant to Section 8 hereof for filing on Form 8-K. The conditions to the
use of a registration statement on Form S-3 under the Act, as set forth in
the General Instructions to Form S-3, and the conditions of Rule 415 under
the Act, have been satisfied with respect to the Registration Statement.
(b) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, when they become effective or are filed with the
Commission, as the case may be, in all material respects to the
requirements of the Securities Act and the Rules and Regulations. The
Registration Statement, as of the Effective Date thereof and of any
amendment thereto, did 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 not misleading. The Prospectus for a Series
of Notes identified in the related Terms Agreement, as of its date, and as
amended or supplemented as of the Closing Date, does not and will not
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that no
representation or warranty is made as to (i) information contained in or
omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Depositor in
writing by any Underwriter through the Representative expressly for use
therein, it being understood that such information is limited to the
information identified in the related Terms Agreement as the "Underwriters'
Information" or (ii) other than with respect to any Mortgage Pool Error,
any information contained in any Collateral Term Sheet, Structural Term
Sheet or Computational Materials (each as defined in Sections 8
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and 9 below). The Prospectus delivered to the Underwriters for use in
connection with the offering of the related Series of Notes was identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system,
except to the extent permitted by Regulation S-T.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and any further
documents so filed and incorporated by reference in the Prospectus, when
such documents are filed with the Commission, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder.
(d) The Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Maryland, with
full corporate power and authority to own its assets and conduct its
business as described in the Prospectus, is duly qualified as a foreign
corporation in good standing in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the Depositor, and is conducting its business so
as to comply in all material respects with the applicable statutes,
ordinances, rules and regulations of the jurisdictions in which it is
conducting business.
(e) There are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process or, to the
knowledge of the Depositor, threatened by or before any court,
administrative agency or other tribunal to which the Depositor is a party
or of which any of its properties is the subject (i) which if determined
adversely to the Depositor would have a material adverse effect on the
business or financial condition of the Depositor, (ii) asserting the
invalidity of any of the Operative Agreements or the related Series of
Notes, (iii) seeking to prevent the issuance of the related Series of Notes
or the consummation by the Depositor of any of the transactions
contemplated by any of the Operative Agreements or (iv) which might
materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, any of the
Operative Agreements or the related Series of Notes.
(f) The related Operative Agreements and the related Notes conform, or
will conform as of the related Delivery Date, to the description thereof
contained in the Registration Statement and the related Prospectus; and the
Notes of a Series, on the Delivery Date set forth in the related Terms
Agreement, will have been duly and validly authorized and, when such Notes
are duly and validly executed by the Trust, authenticated by the Indenture
Trustee or the Trust Administrator and delivered in accordance with such
Operative Agreements and delivered and paid for as provided herein, will be
validly issued and outstanding and entitled to the benefits afforded by the
related Operative Agreements.
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(g) The execution and delivery by the Depositor of this Agreement and
the other related Operative Agreements to which it is a party are within
the corporate power of the Depositor and have been, or will have been on
the related Delivery Date, duly authorized by all necessary corporate
action on the part of the Depositor; and neither the execution and delivery
by the Depositor of such instruments, nor the consummation by the Depositor
of the transactions herein or therein contemplated, nor the compliance by
the Depositor with the provisions hereof or thereof, will (i) conflict with
or result in a breach of, or constitute a default under, any of the
provisions of the certificate of incorporation or by-laws of the Depositor,
(ii) conflict with any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties, (iii) conflict with any of the provisions of any indenture,
mortgage, contract or other instrument to which the Depositor is a party or
by which it is bound, or (iv) result in the creation or imposition of any
lien, charge or encumbrance upon any of its property pursuant to the terms
of any such indenture, mortgage, contract or other instrument.
(h) At the date thereof, each Agreement to which the Depositor is a
party will constitute a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally from time to time in effect, and to general
principles of equity.
(i) All approvals, authorizations, consents, orders or other actions
of any person, corporation or other organization, or of any court,
governmental agency or body or official (except with respect to the state
securities or Blue Sky laws of various jurisdictions), required in
connection with the valid and proper authorization, issuance and sale of
the Notes of the related Series pursuant to this Agreement and the other
related Operative Agreements has been or will be taken or obtained on or
prior to the applicable Delivery Date.
(j) At the applicable Delivery Date, each of the Mortgage Loans
included in the Trust will conform to the representations and warranties
with respect thereto set forth in the related Mortgage Loan Purchase
Agreement and the Depositor will (i) have equitable title to the interest
in the Mortgage Loans, free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest
(collectively, "Liens"), (ii) not have assigned to any person (other than
the Trust) any of its right, title or interest in the Mortgage Loans, and
(iii) have the power and authority to sell its interest in the Mortgage
Loans to the Trust and to sell the related Series of Notes to the
Underwriters. Upon execution and delivery of the related Transfer and
Servicing Agreement by the Owner Trustee, the Owner Trustee will have
acquired beneficial ownership of all of the Depositor's title and interest
in and to the Mortgage Loans, which will in turn be pledged to the
Indenture Trustee in accordance with the terms of the Indenture.
(k) If so specified in the Prospectus, certain of the Notes subject to
this Agreement and offered by means of the Registration Statement may, when
issued
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pursuant to the Indenture, be "mortgage related securities", as such term
is defined in Section 3(a)(41) of the Exchange Act.
(l) Neither the Depositor nor the Trust will be subject to
registration as an investment company under the Investment Company Act of
1940, as amended (the "Investment Company Act").
(m) Since the respective dates as of which information provided by the
Seller or the Depositor is given in the Prospectus, there has not been any
material adverse change in the general affairs, management, financial
condition, or results of operations of the Depositor or any Seller,
otherwise than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
(n) Any certificate signed by an officer of the Depositor and
delivered to the Representative or counsel for the Representative in
connection with an offering of the Notes shall be deemed, and shall state
that it is, a representation and warranty of the Depositor as to the
matters covered thereby on the date of such certificate to each person to
whom the representations and warranties in this Section 2 are made.
(o) As of the date of delivery, there are no Mortgage Pool Errors in
any of the information provided to the Underwriters regarding the Mortgage
Loans and such information is true and correct in all material respects or,
if there is any material error in any such information, the Depositor has
promptly provided corrected information to the Underwriters.
(p) On the Closing Date, the Mortgage Loans will conform in all
material respects to the description thereof contained in the Prospectus
and the representations and warranties contained in this Agreement will be
true and correct in all material respects. The representations and
warranties of the Seller and the Depositor set out in the Transfer and
Servicing Agreement are hereby made to the Underwriters as though set out
herein, and at the dates specified therein, such representations and
warranties were or will be true and correct in all material respects.
(q) Each of the Seller and the Depositor possess all material
licenses, certificates, permits or other authorizations issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now operated by it and as described in
the Prospectus and there are no proceedings pending or, to the best
knowledge of the Depositor, threatened, relating to the revocation or
modification of any such license, certificate, permit or other
authorization which singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely
affect the business, operations, results of operations, financial position,
income, property or assets of either the Seller or the Depositor.
(r) The Depositor is not aware of (i) any request by the Commission
for any further amendment of the Registration Statement or the Prospectus
or for any additional information, (ii) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any
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proceeding for that purpose, or (iii) any notification with respect to the
suspension of the qualification of the related Series of Notes for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
3. Purchase, Sale and Delivery of Notes. Delivery of and payment for each
Series of Notes to which this Agreement applies will be made at such time and
location as is specified in the related Terms Agreement, or as the
Representative and the Depositor shall agree upon, each such time being herein
referred to as a "Delivery Date." Delivery of such Notes shall be made by the
Depositor to the Underwriters against payment of the purchase price specified in
the applicable Terms Agreement in same day funds wired to such bank as may be
designated by the Depositor, or by such other manner of payment as may be agreed
upon by the Depositor and the Representative. Except as otherwise provided in
the related Terms Agreement, each Class of Notes of a Series sold to the
Underwriters pursuant to such Terms Agreement will be represented initially by
one or more notes registered in the name of Cede & Co., the nominee of the
Depository Trust Company (the "DTC Notes"). The interests of the beneficial
owners of the DTC Notes will be represented by book entries on the records of
DTC and participating members thereof. Definitive certificates for the DTC Notes
will be made available only under the limited circumstances specified in the
Indenture. Except as otherwise provided in the related Terms Agreement, each
Class of Notes of a Series sold to the Underwriters as definitive notes pursuant
to such Terms Agreement will be in definitive, fully registered form, in such
denominations and registered in such names as the Representative shall request,
and will be made available at least 24 hours prior to the applicable Closing
Date, for checking and packaging at the offices of Hunton & ▇▇▇▇▇▇▇▇ LLP,
Riverfront Plaza, East Tower, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in
such amounts as determined pursuant to the Terms Agreement.
The Depositor and the Underwriters have agreed that the Delivery Date will
be the date as set forth in the related Terms Agreement.
4. Offering by Underwriters. It is understood that the Underwriters propose
to offer the Notes subject to this Agreement for sale to the public as set forth
in the Prospectus.
5. Covenants of the Depositor. The Depositor covenants and agrees with the
Underwriters participating in the offering of the applicable Series of Notes
that:
(a) Immediately following the execution of the related Terms
Agreement, the Depositor will prepare a Prospectus Supplement setting forth
the amount of Notes of the related Series covered thereby and the terms
thereof not otherwise specified in the Base Prospectus, the price at which
such Notes are to be purchased by the Underwriters, from the Depositor,
either the initial public offering price or the method by which the price
at which such Notes are to be sold will be determined, the selling
concessions and reallowances, if any, and such other information as the
Representative and the Depositor deem appropriate in connection with the
offering of such Notes, but the Depositor will not file, for so long as the
delivery of a Prospectus is required in connection with the offering or
sale of such Notes, any amendments to the Registration Statement as in
effect with respect to such Notes, or any amendments or supplements to the
related Prospectus, unless it shall first have delivered copies of such
amendments or supplements to the Representative, or if the Representative
shall have reasonably objected thereto promptly
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after receipt thereof, the Depositor will, during such period, immediately
advise the Representative or its counsel (i) when notice is received from
the Commission that any post-effective amendment to the Registration
Statement has become or will become effective and (ii) of any order or
communications suspending or preventing, or threatening to suspend or
prevent, the offer and sale of the Notes or of any proceedings or
examinations that may lead to such an order or communication, whether by or
of the Commission or any authority administering any state securities or
Blue Sky law, as soon as the Depositor is advised thereof, and will use its
best efforts to prevent the issuance of any such order or communication and
to obtain as soon as possible its lifting, if issued. The Depositor will
use its best efforts to prevent the issuance of any stop order suspending
the effectiveness of the Registration Statement and, if issued, to obtain
as soon as possible the withdrawal thereof. The Depositor will file such
Prospectus pursuant to Rule 424 under the Act not later than the
Commission's close of business on the second Business Day following the
availability of the Prospectus to the Underwriters.
(b) If, at any time when a Prospectus relating to the Notes of the
related Series is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then amended or supplemented would
include 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, or if it is
necessary at any time to amend or supplement the Prospectus to comply with
the Act or the Rules and Regulations, the Depositor will promptly prepare
and file with the Commission, an amendment or supplement that will correct
such statement or omission or an amendment that will effect such
compliance; provided, however, that the Depositor will not be required to
file any such amendment or supplement with respect to any Computational
Materials, Structural Term Sheets (each as defined in Section 8 below) or
Collateral Term Sheets (as defined in Section 9 below) incorporated by
reference in the Prospectus other than any amendments or supplements of
such Computational Materials or Structural Term Sheets that are furnished
to the Depositor by the Underwriters pursuant to Section 8(a) hereof or any
amendments or supplements of such Collateral Term Sheets that are furnished
to the Depositor by the Underwriters pursuant to Section 9(a) hereof which
are required to be filed in accordance therewith.
(c) The Depositor will cause any Computational Materials and any
Structural Term Sheets with respect to the Notes of a Series that are
delivered by the Representative to the Depositor pursuant to Section 8 to
be filed with the Commission on a Current Report on Form 8-K (a "Current
Report") pursuant to Rule 13a-11 under the Exchange Act in accordance with
Section 10 prior to the time of filing of the Prospectus as provided in
Section 5(a) hereof and will include therein all such materials so
furnished. The Depositor will cause any Collateral Term Sheet with respect
to the offered Notes of a Series that is delivered by the Representative to
the Depositor in accordance with the provisions of Section 9 to be filed
with the Commission on a Current Report pursuant to Rule 13a-11 under the
Exchange Act in accordance with Section 10 within two Business Days of
delivery of any such Collateral Term Sheet to any prospective investor in
the related Series of Notes and will include therein all such materials so
furnished. In addition, if at any time prior to the availability of the
related Prospectus, the Representative has delivered to any prospective
investor a subsequent Collateral Term
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Sheet that reflects, in the reasonable judgment of the Representative and
the Depositor, a material change in the characteristics of the Mortgage
Loans for the related Series from those on which a Collateral Term Sheet
with respect to the related Series previously filed with the Commission was
based, the Depositor will cause any such Collateral Term Sheet that is
delivered by the Representative to the Depositor in accordance with the
provisions of Section 9 hereof to be filed with the Commission on a Current
Report in accordance with Section 10. Each such Current Report shall be
incorporated by reference in the related Prospectus and the related
Registration Statement. Each Underwriter that prepares and delivers to any
prospective investor in a Series of Notes any Computational Materials,
Structural Term Sheets or Collateral Term Sheets hereby agrees to deliver
those Computational Materials, Structural Term Sheets or Collateral Term
Sheets to the Representative prior to the required delivery date by the
Representative to the Depositor set forth in Sections 8 and 9 hereof.
(d) The Depositor will cause the Trust Administrator to furnish or
make available, within a reasonable time after the end of each calendar
year, to each holder of a Note (each, a "Noteholder") at any time during
such year, such information as is necessary or desirable to assist
Noteholders in preparing their federal income tax returns.
(e) The Depositor will furnish to the Representative copies of the
Registration Statement (two of which will be signed and will include all
documents and exhibits thereto or incorporated by reference therein), each
related preliminary prospectus, the Prospectus and all amendments and
supplements to such documents relating to the Notes of the related Series,
in each case as soon as available, and in such quantities as the
Representative reasonably requests.
(f) The Depositor will arrange for, and will pay all expenses
(including reasonable fees and expenses of counsel) in connection with the
qualification of the Notes of the related Series for sale and the
determination of their eligibility for investment under the laws of such
jurisdictions as the Representative designates and will continue such
qualifications in effect so long as required for the distribution of the
Notes; provided, however, that neither the Depositor nor the Trust shall be
required to do business in any jurisdiction where it is now not qualified
or to take any action which would subject it to general or unlimited
service of process in any jurisdiction in which it is now not subject to
service of process.
(g) The Depositor will, while the Notes of a Series are outstanding
furnish to the Representative, and upon request of each other Underwriter,
information with respect to the related Trust or the Mortgage Loans
included in the related mortgage pool, as the Representative or any such
Underwriter may reasonably request, including but not limited to
information necessary or appropriate to the maintenance of a secondary
market in the Notes of such Series.
(h) The Depositor, whether or not the transactions contemplated under
the related Terms Agreement are consummated or the related Terms Agreement
is terminated, will pay all expenses incident to the performance of its
obligations under this Agreement and the Terms Agreement and will reimburse
the Underwriters for any
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expenses (including fees and disbursements of its counsel) incurred by them
in connection with (i) the offering and the qualification of the related
Series of Notes, (ii) the preparation of all documents described herein,
(iii) reasonable fees and expenses of the Servicer, Subservicer, Owner
Trustee, Indenture Trustee and Trust Administrator, (iv) the investigation
by the Underwriters of the Seller, the Depositor and the Mortgage Loans,
(v) the determination of their eligibility for investment under the laws of
such jurisdictions as the Representative may designate and the reproduction
of memoranda relating thereto, (vi) any fees charged by investment rating
agencies for the rating of the Notes and (vii) reasonable and customary
expenses incurred in distributing any preliminary prospectuses, the
Prospectus or any amendments or supplements thereto to the Underwriters;
provided however, that the Depositor shall not be liable for the payment of
any of the foregoing amounts to the extent that the failure to consummate
the transactions described herein resulted from any act or omission of the
Underwriters pursuant to the terms of this Agreement.
(i) During the period when a Prospectus is required by law to be
delivered in connection with the sale of Notes of a related Series pursuant
to this Agreement, the Depositor will file, or cause the Trust
Administrator to file on behalf of the related Trust, on a timely and
complete basis, all documents that are required by the related Trust with
the Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(j) The Depositor will prepare, or cause to be prepared, and file, or
cause to be filed such tax returns and take such actions, all on a timely
basis, as is required to maintain the Notes as debt status for tax
purposes.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Notes of a related Series subject
to this Agreement will be subject to the accuracy of the representations and
warranties on the part of the Depositor as of the date hereof, the date of the
Terms Agreement and the applicable Delivery Date, to the accuracy of the
statements of the Depositor made pursuant to the provisions thereof, to the
performance by the Depositor in all material respects of its obligations
hereunder and to the following additional conditions precedent:
(a) Each of the obligations of the Depositor required to be performed
by it on or prior to the Closing Date pursuant to the terms of the relevant
Operative Agreements shall have been duly performed and complied with and
all of the representations and warranties of the Depositor under any of the
Operative Agreements shall be true and correct as of the Closing Date or as
of another date specified therein and no event shall have occurred which,
with notice or the passage of time, would constitute a default under any of
such Operative Agreements, and the Underwriters shall have received
certificates to the effect of the foregoing, each signed by an authorized
officer of the Depositor.
(b) The Representative shall have received letters dated the date of
the Terms Agreement, in form and substance reasonably acceptable to the
Representative and its counsel, prepared by independent certified public
accountants, (i) regarding the numerical and statistical information
contained in the Prospectus, other than the numerical and
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statistical information referred to in Section 6(d) hereof, and (ii)
relating to certain agreed upon procedures as specified by the
Underwriters.
(c) The Representative shall have received letters dated the date of
the Terms Agreement, in form and substance reasonably acceptable to the
Representative and its counsel, prepared by independent certified public
accountants, regarding the numerical and statistical information contained
in the Computational Materials, Structural Term Sheets and Collateral Terms
Sheets.
(d) The Representative shall have received letters dated the date of
the Terms Agreement, in form and substance acceptable to the Representative
and its counsel, prepared by independent certified public accountants of
the Servicers, regarding the numerical and statistical information
contained in the Prospectus regarding the Servicers' respective servicing
portfolios.
(e) The Representative and each Underwriter shall have received the
requested number of copies of the Prospectus for the related Series of
Notes.
(f) All actions required to be taken and all filings required to be
made by the Depositor under the Act prior to the sale of the Notes of the
applicable Series shall have been duly taken or made; and prior to the
applicable Delivery Date, the Representative shall have received
confirmation of the effectiveness of the Registration Statement and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted,
or to the knowledge of the Depositor or any Underwriter, shall be
contemplated by the Commission.
(g) The Notes subject to this Agreement and offered by means of the
Registration Statement shall be rated by the applicable rating agencies at
the time of issuance as set forth in the Terms Agreement.
(h) (1) The Representative shall have received an opinion of counsel
or counsels for the Depositor, dated the applicable Delivery Date,
substantially to the effect that:
(i) The Depositor has been duly incorporated and is validly
existing as a corporation and is in good standing under the laws of
the state of Maryland. The Depositor has the corporate power and
authority to own its assets and to conduct its business as described
in the Prospectus and to enter into and perform its obligations under
the Operative Agreements to which it is a party;
(ii) Each of the Trust Agreement, Mortgage Loan Purchase
Agreement and the Transfer and Servicing Agreement has been duly
authorized, executed and delivered by the Depositor and each
constitutes a valid and binding agreement of the Depositor,
enforceable against the Depositor in accordance with its terms;
(iii) When duly authorized by the Issuer and duly and validly
executed and delivered by the Owner Trustee, on behalf of the Issuer,
and authenticated by the Indenture Trustee in accordance with the
terms of the Indenture, delivered
-11-
against payment of the purchase price therefor pursuant to this
Underwriting Agreement, the Notes will be entitled to the benefits of
the Indenture and will constitute valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms;
(iv) Each of the Operative Agreements to which it is a party has
been duly authorized, executed and delivered by the Depositor;
(v) The execution and delivery by the Depositor of each of the
Underwriting Agreement, the related Terms Agreement, the Trust
Agreement, the Mortgage Loan Purchase Agreement and the Transfer and
Servicing Agreement and the performance by the Depositor of its
obligations thereunder each in accordance with its terms, do not
conflict with the certificate of incorporation or by-laws of the
Depositor;
(vi) At the date hereof, the Issuer is not required to be
registered under the Investment Company Act of 1940, as amended;
(vii) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), and complies with the
requirements of the TIA and the applicable Rules and Regulations;
(viii) The Indenture creates a valid security interest in favor
of the Indenture Trustee, for the benefit of the holders of the Notes,
in the Issuer's right, title and interest in and to the Collateral
securing the obligations of the Issuer under the Indenture in which a
security interest may be created pursuant to the UCC;
(ix) The Registration Statement has been declared effective under
the 1933 Act; the Base Prospectus and the Prospectus Supplement have
each been filed pursuant to Rule 424(b) of the rules and regulations
of the Commission under the 1933 Act in the manner and within the time
period required by Rule 424(b); and, to the best of our knowledge, no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or threatened by the Commission;
(x) The Registration Statement and the Prospectus (in each case
other than (A) the financial statements, schedules, tables and other
financial and statistical data included or incorporated by reference
therein or omitted therefrom and (B) any documents incorporated by
reference, as to which such counsel need not express an opinion), as
of their respective effective or issue dates, as the case may be, each
appeared on its face to be appropriately responsive in all material
respects to the applicable requirements of the 1933 Act and the rules
and regulations of the Commission under the 1933 Act;
(xi) In the event that the related Prospectus Supplement
discloses that any class of Notes constitute "mortgage-related
securities" within the meaning of
-12-
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended,
that such class so qualifies assuming that it is rated by a nationally
recognized statistical rating organization in one of its two highest
rating categories, for so long as it is so rated;
(xii) The information in the Prospectus under the captions
"Description of the Notes," "The Mortgage Loan Purchase Agreement and
the Transfer and Servicing Agreement" and "The Trust Agreement and the
Indenture," to the extent that it constitutes a summary of certain
provisions of the Notes and of the Mortgage Loan Purchase Agreement,
the Transfer and Servicing Agreement, the Trust Agreement and the
Indenture, has been reviewed by such counsel and is correct in all
material respects; the statements contained under the caption "ERISA
Considerations," insofar as such statements describe certain
provisions of federal statutes and regulations, have been reviewed by
such counsel, and such statements fairly describe such provisions and
regulations; and the statements contained under the caption "Federal
Income Tax Consequences," insofar as such statements constitute
conclusions of law, are true and correct in all material respects as
set forth therein;
(xiii) With respect to the mortgage notes that constitute
"instruments," "general intangibles" or "tangible chattel paper," as
those terms are defined in the UCC, the filing of a Financing
Statement on form UCC1 in proper form in the appropriate filing office
in the State of Maryland will be effective to perfect the security
interest of the Indenture Trustee in the mortgage notes. Such security
interest in favor of the Indenture Trustee will be prior to any
security interest in the Mortgage Notes in favor of any other creditor
of the Issuer;
(xiv) The Notes, other than those certain Classes, or portions of
Classes, of Notes which, at the time of their issuance, the Seller, or
one of its qualified REIT Subsidiaries acquires beneficial ownership
thereof ("the Retained Notes"), will be treated as debt for U.S.
federal income tax purposes. In addition, we are of the opinion that,
if any Retained Note is subsequently sold for cash to a party
unrelated to the beneficial owner of the Ownership Certificate, such
Retained Note will be treated as debt for U.S. federal income tax
purposes as of the date of such sale, assuming we can continue to rely
on all of the Closing Date REIT Assumptions, determined as of the date
of such sale where appropriate, and provided that:
1. no modifications have been made to the Transaction
Documents as of the date of such sale;
2. the Rating Agency's rating of such Retained Note as of
the date of such sale is not lower than the rating for
such Retained Note as of the Closing Date; and
-13-
3. no adverse changes have been made to (or that would
adversely affect the application of) the Closing Date
Legal Authorities (as defined below).
(xv) For U.S. federal income tax purposes, the Trust will not be
classified as an association taxable as a corporation or a publicly
traded partnership taxable as a corporation; and
(xvi) Although the Trust will be classified as a taxable mortgage
pool during the time that any Notes are outstanding, the Trust will
not be subject to federal income tax during such time as long as the
beneficial owner of the Ownership Certificate qualifies as a REIT or
as a qualified REIT Subsidiary under the Code.
(2) The Representative shall have received an opinion of counsel or
counsels for the Seller, dated the applicable Delivery Date, substantially
to the effect that:
(i) The Seller has been duly incorporated and is validly existing
as a corporation and is in good standing under the laws of the State
of Maryland. The Seller has the organizational power and authority to
own its properties and to conduct its business as such properties are
presently owned and such business is presently conducted. The Seller
has the corporate power and authority to acquire and own the Mortgage
Loans.
(ii) The Seller has the corporate power and authority to (a)
execute and deliver the Operative Agreements, (b) perform its
obligations under and consummate the transactions provided for in the
Operative Agreements, and (c) transfer its rights, title and interests
in, to and under the related Mortgage Loans to the Depositor on the
terms and conditions provided in the Mortgage Loan Purchase Agreement.
(iii) The Transferor has the corporate power and authority to (a)
execute and deliver the Mortgage Loan Purchase Agreement, (b) perform
its obligations under and consummate the transactions provided for in
the Mortgage Loan Purchase Agreement, and (c) transfer its rights,
title and interests in, to and under the related Mortgage Loans to the
Depositor on the terms and conditions provided in the Mortgage Loan
Purchase Agreement.
(iv) Each of the Operative Agreements has been duly authorized
and executed by a duly authorized officer of the Seller.
(v) The transfer and sale by each of the Seller and the
Transferor of the related Mortgage Loans to the Depositor pursuant to
the Mortgage Loan Purchase Agreement, the compliance by the Seller and
the Transferor, as applicable, with the provisions of the related
Operative Agreements and the consummation of the transactions
contemplated by the related Operative Agreements and the fulfillment
of the terms thereof will not violate or breach any
-14-
of the terms and provisions of the articles of incorporation or bylaws
of the Seller or the limited liability company agreement of the
Transferor, as applicable.
(vi) No authorization, approval, or other action by, and no
notice to or filing with any court, governmental authority or
regulatory body is required for the due execution, delivery and
performance by the Seller or the Transferor of the related Operative
Agreements.
(vii) Each of the related Operative Agreements constitutes the
valid and binding obligation of the Seller and the Transferor
enforceable against the Seller and the Transferor, respectively, in
accordance with its terms.
(viii) To our knowledge, there is no legal or governmental
action, investigation or proceeding pending or threatened against the
Seller (a) asserting the invalidity of any of the Operative
Agreements, (b) seeking to prevent the consummation of any of the
transactions provided for in the Operative Agreements, or (c) that
would materially and adversely affect the ability of the Seller to
perform its obligations under, or the validity or enforceability with
respect to the Seller of, any of the Operative Agreements.
Such counsel or counsels shall also deliver an opinion or opinions (i) that
the transfer of all of the right, title and interest in and to the Mortgage
Loans from the Seller to the Depositor, from the Transferor to the Depositor and
from the Depositor to the Issuer in each case, constitutes a "true sale" for
bankruptcy purposes and (ii) with respect to the "non-consolidation" in a
bankruptcy proceeding of the Seller and the Depositor.
Such counsel or counsels shall also state that nothing has come to their
attention that would lead them to believe that the Registration Statement (at
the time it became effective) or the Prospectus or the Prospectus Supplement (in
both cases, as of the date of the Prospectus Supplement and as of the Delivery
Date) (other than the financial and statistical information or information
contained therein, as to which such counsel need not express an opinion)
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(i) The Representative shall have received an opinion of counsel to
the Trust, Owner Trustee, Trust Administrator, Custodian and Indenture
Trustee, dated the Delivery Date, and in the form agreed to on or prior to
the date of the Terms Agreement.
(j) The Representative shall have received opinions of counsel to the
Master Servicer, each Servicer and each Subservicer, dated the Delivery
Date, and in the form agreed to on or prior to the date of the Terms
Agreement.
(k) The Representative shall have received opinions of counsel to any
provider of any derivative instrument documented under the ISDA master
agreement, and an opinion of counsel to any credit support provider or
guarantor relating to such derivative instrument, dated the Delivery Date,
and in the form agreed to on or prior to the date of the Terms Agreement.
-15-
(l) The Representative shall have received opinions of counsel to any
credit enhancement provider relating to the Notes, dated the Delivery Date,
and in the form agreed to on or prior to the date of the Terms Agreement.
(m) The Representative shall have received a certificate or
certificates signed by such of the principal executive, financial and
accounting officers each of the Seller, the Servicer and the Depositor as
the Representative may request, dated the applicable Delivery Date, in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that with respect to each such party, as
applicable, (i) the representations and warranties of such party in this
Underwriting Agreement and in any applicable Operative Agreement are true
and correct; (ii) such party has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Date; (iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated; (iv) the information contained in
the Prospectus relating to the Seller, the Servicer and the Depositor, as
applicable, and relating to the Mortgage Loans, is true and accurate in all
material respects and nothing has come to his or her attention that that
would lead such officer to believe that the Prospectus contains any untrue
statement of material fact or omits to state a material fact necessary to
make the statements therein not misleading; (v) subsequent to the
respective dates as of which information is given in the Prospectus, and
except as otherwise set forth in or contemplated by the Prospectus, there
has not been any material adverse change in the general affairs,
capitalization, financial condition or results of operations of such party;
(vi) except as otherwise stated in the Prospectus, there are no material
actions, suits or proceedings pleading before any court or governmental
agency, authority or body or, to their knowledge, threatened, affecting
such party or the transactions contemplated by this Underwriting Agreement;
(vii) attached thereto are true and correct copies of a letter from the
rating agency or agencies rating the related Series of Notes confirming
that the Notes of such Series have been rated in one of the four highest
rating categories established by such agency or agencies as set forth in
the Terms Agreement and such rating has not been lowered since the date of
such letter; and (viii) any applicable derivative instrument documented
under the ISDA Master Agreement (including any related credit support
documents or guarantees) has been delivered.
(n) If applicable, the Representative shall have received letters
dated the applicable Delivery Date from counsel rendering opinions to any
nationally recognized statistical rating organization rating the applicable
Series of Notes, to the effect that the Representative may rely upon their
opinion to such rating organization, as if such opinion were rendered to
the Representative.
(o) The Representative shall have received certificates of the Trust,
the Owner Trustee, the Trust Administrator and the Indenture Trustee,
signed by one or more duly authorized officers of such parties, dated the
applicable Delivery Date, as to the due acceptance of the related Operative
Agreements by such parties, as applicable, and the due authorization and
delivery of the Notes of such Series by the Trust and the Trust
Administrator thereunder.
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(p) To the extent, if any, that the ratings provided to the Notes of
the related Series by any of Standard & Poor's Ratings Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") or ▇▇▇▇▇ Ratings ("Fitch") are conditional upon the furnishing
of documents or opinions of counsel or the taking of any other actions by
the parties to the Operative Agreements, as the case may be, shall furnish
such documents and take any such other actions.
(q) The Representative shall have received letters from each Rating
Agency confirming the ratings set forth in the related Terms Agreement.
(r) The Depositor will furnish the Representative with such conformed
copies of such other opinions, certificates, letters and documents as the
Representative reasonably requests.
(s) Subsequent to the execution and delivery of the related Terms
Agreement, a downgrading, or public notification of a possible change,
without indication of direction, shall not have occurred in the rating
afforded any of the debt securities or claims paying ability of any person
providing any form of credit enhancement for any of the Notes, by any
"nationally recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act.
(t) There shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations, subsequent to the execution and
delivery of the related Terms Agreement, of the Seller and its affiliates
that is in the reasonable judgment of the Representative material and
adverse and that makes it in the reasonable judgment of the Representative
impracticable to market the Notes on the terms and in the manner
contemplated in the Prospectus.
(u) Subsequent to the execution and delivery of the related Terms
Agreement, none of the following shall have occurred (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been suspended or
minimum prices shall have been established on either of such exchanges or
such market by the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or New York state
authorities, (iii) the United States shall have become engaged in material
hostilities, there shall have been an escalation of such hostilities
involving the United States or there shall have been a declaration of war
by the United States, or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions (or
the effect of international conditions on the financial markets of the
United States shall be such), and in the case of any of the events
specified in clauses (i) through (iv), such event makes it, in the
reasonable judgment of the Representative, impractical to market the Notes.
-17-
7. Indemnification.
(a) The Depositor will indemnify and hold harmless the Representative
and each Underwriter and each person, if any, who controls the
Representative or such Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, against any losses, claims,
expenses, damages or liabilities (including the cost of any investigation,
legal and other expenses incurred in connection with and amounts paid
settlement of any action, suit, proceeding or claim asserted) to which the
Representative or such Underwriter or such controlling person may become
subject, under the Act or the Exchange Act or other Federal or State
statutory law or otherwise, insofar as such losses, claims, expenses,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or the Prospectus or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading; and will reimburse the Representative and each Underwriter and
each such controlling person for any legal or other expenses reasonably
incurred by the Representative or such Underwriter and each such
controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided however, that the
Depositor will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement in or omission or alleged
omission made in any of such documents (A) in reliance upon and in
conformity with any Underwriters' Information, or (B) in any Derived
Information furnished to prospective investors by the Underwriters, except
to the extent that any untrue statement or alleged untrue statement therein
or omission therefrom results directly from an error (a "Mortgage Pool
Error") in the information concerning the characteristics of the Mortgage
Loans furnished by the Seller or the Depositor to the Representative or any
Underwriter in writing or by electronic transmission that was used in the
preparation of either (x) any Computational Materials, Structural Term
Sheets or Collateral Term Sheets (or amendments or supplements thereof) or
(y) any written or electronic materials furnished to prospective investors
on which the Computational Materials, Structural Term Sheets or Collateral
Term Sheets (or amendments or supplements) were based. This indemnity
agreement will be in addition to any liability which the Depositor may
otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Depositor, each of its directors, each of its
officers who signed the Registration Statement and each person, if any, who
controls the Depositor within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act to the same extent as the foregoing
indemnities from the Depositor to each Underwriter, but only with reference
to (A) Derived Information provided by such Underwriter (except to the
extent resulting from a Mortgage Pool Error) and (ii) the Registration
Statement, the Prospectus or any amendment or supplement thereto, or arise
out of, or are based upon, the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements made therein not misleading, but with respect to clause
(b)(ii) above, only to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with any
-18-
Underwriters' Information; provided, however, that in no event shall an
Underwriter be liable to the Depositor under this paragraph (b) with
respect to the material described in clause (B) unless such Underwriter
prepared such Derived Information and no Underwriter shall be liable to the
Depositor under this paragraph (b) in an amount in excess of the
underwriting discounts and commissions received by such Underwriter in
connection with the offering of the related Series of Notes. This indemnity
agreement will be in addition to any liability that such Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof, but the omission to so notify the indemnifying party
will not relieve the indemnifying party from any liability which the
indemnifying party may have to any indemnified party hereunder except to
the extent such indemnifying party has been prejudiced thereby. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party). After notice from the indemnifying party to such
indemnified party of its election to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof , unless (i) the
indemnified party shall have employed separate counsel in connection with
the assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate
counsel (in addition to local counsel) for each of, and approved by, the
Underwriters in the case of paragraph (a) of this Section 7, representing
the related indemnified parties under such paragraph (a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall only be in
respect of the counsel referred to in such clause (i) or (iii). No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action. In no event shall an indemnifying party be liable
for the fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances.
-19-
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Depositor on the one hand and the Underwriters on the other
from the offering of the related Series of Notes or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Depositor on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Depositor on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Depositor bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Depositor or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified in connection with
investigating or defending any action or claim which is the subject to this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of
underwriting discounts and commissions received by such Underwriter . No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion
to their respective underwriting obligations and not joint.
(e) For purposes hereof, as to each Underwriter, the term "Derived
Information" means such information, if any, in the Collateral Term Sheets,
Structural Term Sheets and/or Computational Materials that (i) is not
contained or corrected in the Prospectus taking into account information
incorporated therein by reference (other than information incorporated by
reference from the Collateral Term Sheets, Structural Term Sheets and/or
Computational Materials) or (ii) is not contained in any pool information
provided by the Depositor or any affiliate thereof.
8. Computational Materials and Structural Term Sheets.
(a) The Representative agrees to provide to the Depositor no less than
two business days prior to the date on which the Prospectus is proposed to
be filed pursuant to Rule 424(b) under the Act, for the purpose of
permitting the Depositor to comply with the filing requirement set forth in
Section 5(c), all information (in such written or electronic format as
required by the Depositor) prepared by it with respect to the related
Series of
-20-
Notes which constitutes (i) "Computational Materials", as defined in the
Commission's No-Action Letter, dated May 20, 1994, addressed to ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co. Incorporated and
▇▇▇▇▇▇ Structured Asset Corporation, and the no-action letter dated May 27,
1994 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "▇▇▇▇▇▇ Letters"), the filing
of which materials is a condition of the relief granted in such letters
(such materials being the "Computational Materials"), and (ii) "Structural
Term Sheets" within the meaning of the no-action letter dated February 17,
1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter") and the filing of such
materials is a condition of the relief granted in such letter (such
materials being the "Structural Term Sheets"), such delivery to be made not
later than 10:30 a.m. New York time on the business day immediately
following the date on which such Computational Materials or Structural Term
Sheets was first delivered to prospective investors in the Notes. Each
delivery of Computational Materials and Structural Term Sheets to the
Depositor pursuant to this paragraph (a) shall be effected in accordance
with Section 10.
(b) Each Underwriter represents and warrants to and agrees with the
Depositor, as of the date of the related Terms Agreement and as of the
Closing Date, that:
(i) the Computational Materials of such Underwriter delivered to
the Representative for delivery to the Depositor pursuant to Section
8(a) constitute (either in original, aggregated or consolidated form)
all of the materials furnished to prospective investors by such
Underwriter prior to the time of delivery thereof to the Depositor;
(ii) the Structural Term Sheets of such Underwriter delivered to
the Representative for delivery to the Depositor pursuant to Section
8(a) constitute all of the materials furnished to prospective
investors by such Underwriter prior to the time of delivery thereof;
and
(iii) on the date any such Computational Materials or Structural
Term Sheets with respect to such Notes (or any written or electronic
materials furnished to prospective investors on which the
Computational Materials are based) were last furnished to each
prospective investor by such Underwriter and on the date of delivery
thereof to the Depositor pursuant to Section 8(a) and on the related
Closing Date, any Derived Information contained in such Computational
Materials (or such other materials) or Structural Term Sheets did not
and will not include any untrue statement of a material fact or, when
read in conjunction with the Prospectus and Prospectus Supplement,
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
Notwithstanding the foregoing, no Underwriter makes any representation or
warranty as to whether any Derived Information contained in Computational
Materials or Structural Term Sheets (or any written or electronic materials on
which the Computational Materials are based) included or will include any untrue
statement resulting directly from any Mortgage Pool Error.
-21-
9. Collateral Term Sheets.
(a) Prior to the delivery of any Collateral Term Sheet, the filing of which
material is a condition of the relief granted in such letter (such material
being the "Collateral Term Sheets"), to a prospective investor in the Notes, the
Underwriters shall notify the Depositor and its counsel by telephone of its
intention to deliver such materials and the approximate date on which the first
such delivery of such materials is expected to occur. Not later than 10:30 a.m.,
New York time, on the business day immediately following the date on which any
Collateral Term Sheet was first delivered to a prospective investor in the
Notes, the Underwriters shall deliver to the Depositor one complete copy of all
materials provided by the Representative to prospective investors in such Notes
which constitute "Collateral Term Sheets." Each delivery of a Collateral Term
Sheet to the Depositor pursuant to this paragraph (a) shall be effected in
accordance with Section 10. At the time of each such delivery, the
Representative shall indicate in writing that the materials being delivered
constitute Collateral Term Sheets, and, if there has been any prior such
delivery with respect to the related Series, shall indicate whether such
materials differ in any material respect from any Collateral Term Sheets
previously delivered to the Depositor with respect to such Series pursuant to
this Section 9(a) as a result of the occurrence of a material change in the
characteristics of the related Mortgage Loans.
(b) Each Underwriter represents and warrants to and agrees with the
Depositor as of the date of the related Terms Agreement and as of the Closing
Date, that:
(i) The Collateral Term Sheets by such Underwriter delivered to the
Representative for delivery to the Depositor pursuant to Section 9(a)
constitute all of the materials furnished to prospective investors by such
Underwriter prior to time of delivery thereof to the Depositor,
(ii) On the date any such Collateral Term Sheets with respect to such
Notes were last furnished to each prospective investor by such Underwriter
and on the date of delivery thereof to the Depositor pursuant to Section
9(a) and on the related Closing Date, any Derived Information contained in
such Collateral Term Sheets did not and will not include any untrue
statement of a material fact or, when read in conjunction with the
Prospectus, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
Notwithstanding the foregoing, the Representative makes no representation
or warranty as to whether any Derived Information contained in any
Collateral Term Sheet included or will include any untrue statement or
material omission resulting directly from any Mortgage Pool Error.
(c) If, at any time when a Prospectus relating to the Notes of a Series is
required to be delivered under the Act, it shall be necessary to amend or
supplement the related Prospectus as a result of an untrue statement of a
material fact contained in any Collateral Term Sheets provided by the
Representative pursuant to this Section 9 or the
-22-
omission to state therein a material fact required, when considered in
conjunction with the related Prospectus, to be stated therein or necessary
to make the statements therein, when read in conjunction with the related
Prospectus, not misleading, or if it shall be necessary to amend or
supplement any Current Report relating to any Collateral Term Sheets to
comply with the Act or the rules thereunder, the Representative promptly
will prepare and furnish to the Depositor for filing with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. The Representative represents
and warrants to the Depositor, as of the date of delivery of such amendment
or supplement to the Depositor, that any Derived Information contained in
such amendment or supplement will not include any untrue statement of a
material fact or, when read in conjunction with the related Prospectus,
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, the
Representative makes no representation or warranty as to whether any
Derived Information contained in any such amendment or supplement will
include any untrue statement resulting directly from any Mortgage Pool
Error.
10. Delivery and Filing of Current Reports, Computational Materials,
Collateral Term Sheets, Structural Term Sheets.
(a) Any Current Report, Computational Materials, Collateral Term Sheet
or Structural Term Sheet that is required to be delivered by the
Representative to the Depositor hereunder shall be effected by the delivery
of one copy to counsel for the Depositor and, if requested, one copy in
computer readable format to the Financial Printer on or prior to 10:30 a.m.
on the date so specified herein.
(b) The Depositor shall cause its counsel or the Financial Printer to
file with the Commission any such Current Report, Computational Materials,
Collateral Term Sheet or Structural Term Sheet pursuant to Section 5(c)
hereof.
11. Default of Underwriters. If any Underwriter or Underwriters
participating in an offering of a Series of Notes default in their obligations
to purchase Notes of the related Series hereunder and under the related Terms
Agreement and the aggregate principal amount of such Notes which such defaulting
Underwriter or Underwriters agreed, but failed, to purchase does not exceed 10%
of the total principal amount of the Notes set forth in such Terms Agreement,
the Representative may make arrangements satisfactory to the Depositor for the
purchase of such Notes by other persons, including any of the Underwriters
participating in such offering, but regardless of whether such arrangements are
made the non-defaulting Underwriters shall remain obligated severally to
purchase the Notes of the related Series which they committed to purchase in
accordance with the terms hereunder and under the Terms Agreement. If any
Underwriter or Underwriters so default and the aggregate principal amount of
Notes of the related Series with respect to which such default or defaults occur
is more than 10% of the total principal amount of the Notes set forth in such
Terms Agreement and arrangements satisfactory to the Representative and the
Depositor for the purchase of such Notes by other persons are not made, this
Agreement will terminate without liability on the part of any nondefaulting
Underwriters, except as provided in Section 7. As used in this Agreement, the
term "Underwriter" includes any person substituted
-23-
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
12. Termination of the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Notes of a given Series on the related Delivery
Date shall be terminable by the Underwriters if at any time on or prior to the
Delivery Date (a) any of the conditions set forth in Section 6 are not satisfied
when and as provided therein; (b) there shall have been the entry of a decree or
order by a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to the Seller or the Depositor, or for the
winding up or liquidation of the affairs of the Seller or the Depositor; or (c)
there shall have been the consent by the Seller or the Depositor to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Seller or the Depositor or of or relating to
substantially all of the property of the Seller or the Depositor. The
termination of the Depositor's obligations hereunder shall not terminate the
Depositor's rights hereunder or its right to exercise any remedy available to it
at law or in equity.
13. No Fiduciary Duty. The Depositor acknowledges and agrees that the
Underwriters are acting solely in the capacity of an arm's length contractual
counterparty to the Depositor with respect to the offering of any Series of
Notes contemplated hereby (including in connection with determining the terms of
the offering) and not as a financial advisor or a fiduciary to, or an agent of,
the Depositor or any other person. In addition, neither the Representative nor
any other Underwriter is advising the Depositor or any other person as to any
legal, tax, investment, accounting or regulatory matters in any jurisdiction.
The Depositor shall consult with its own advisors concerning such matters, and
the Underwriters shall have no responsibility or liability to the Depositor with
respect thereto. Any review by the Underwriters of the Depositor, 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 Depositor.
14. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements by the
Depositor or its officers, the Seller or its officers and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of the Underwriters, the Depositor or the Seller or any of
their officers or directors or any controlling person, and will survive delivery
of and payment for Notes of the related Series.
If this Agreement is terminated pursuant to Section 12 or if for any reason
the purchase of the Notes of a given Series by the Underwriters is not
consummated, the Depositor shall remain responsible for the expenses to be paid
or reimbursed by them pursuant to Section 5(h), and the obligations of the
Depositor and the Underwriters pursuant to Section 7 shall remain in effect.
15. Notices. All communications hereunder will be in writing and, if sent
to an Underwriter, will be mailed, delivered or telegraphed and confirmed to the
Underwriters as follows: (a) for the Representative at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
Financial ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇,
-▇▇-
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (b) for Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (c) for Credit Suisse
First Boston LLC, Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and (d) for
▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and to the
Depositor at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(Telecopy Number: 443-367-2230), Attention: President, Fieldstone Mortgage
Investment Corporation.
16. Successors. This Agreement and the Terms Agreement with respect to a
given Series of Notes will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors and
controlling persons referred to in Section 7, and their successors and assigns,
and no other person will have any right or obligations hereunder.
17. Representation of the Underwriters. The Representative will act for the
several Underwriters set forth in the applicable Terms Agreement in connection
with the transactions described in this Agreement and such Terms Agreement with
respect to a given Series of Notes and any action taken by the Representative
under this Agreement will be binding upon all the Underwriters for such Series
of Notes.
18. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS.
19. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
20. Obligations of the Seller. The Seller agrees with the Representative
and each of the Underwriters, for the sole and exclusive benefit of the
Representative and each such Underwriter, the Representative and each such
Underwriter's officers and directors and each person controlling the
Representative and each such Underwriter within the meaning of the Act, and not
for the benefit of any assignee thereof or any other person or persons dealing
with such Underwriter as follows: in consideration of and as an inducement to
their agreement to purchase the Series of Notes under the related Terms
Agreement from the Depositor, to indemnify and hold harmless the Representative
and each Underwriter against any failure by the Depositor to perform its
obligations to the Representative and the Underwriters hereunder, including,
without limitation, any failure by the Depositor to honor any obligation to the
Representative or any Underwriter pursuant to Section 7 hereof. In the case of
any claim against the Seller by the Representative or any Underwriter, any
officer or director of the Representative or any Underwriter or any person
controlling the Representative or any Underwriter, it shall not be necessary for
such claimant to first pursue any remedy from or exhaust any procedures against
the Depositor.
-25-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon, it will become a
binding agreement between the Depositor and the Underwriter, upon the
Underwriter's execution of any related Terms Agreement, in accordance with its
terms.
Very truly yours,
FIELDSTONE MORTGAGE INVESTMENT
CORPORATION, as Depositor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Managing Director
[Signature Page One to Fieldstone 2005-2 Underwriting Agreement]
CREDIT SUISSE FIRST BOSTON LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
[Signature Page Two to Fieldstone 2005-2 Underwriting Agreement]
Agreed to as to Section 19:
FIELDSTONE INVESTMENT CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
[Signature Page Three to Fieldstone 2005-2 Underwriting Agreement]
FORM OF TERMS AGREEMENT
FIELDSTONE MORTGAGE INVESTMENT CORPORATION
FIELDSTONE MORTGAGE INVESTMENT TRUST, SERIES 200[_]-[_]
MORTGAGE-BACKED NOTES, SERIES 200[_]-[_]
TERMS AGREEMENT
[____], 200[_]
To: Fieldstone Mortgage Investment Corporation, as Depositor
under the Transfer and Servicing Agreement dated as of
[____], 200[_]
Re: Underwriting Agreement dated as of [____], 200[_]
Title: Fieldstone Mortgage Investment Corporation Mortgage-Backed
Notes, Series 200[_]-[__], Class [_] Notes
Principal Amount: $[______] (approximate)
Interest Rates: As set forth in Schedule A attached hereto.
Terms of the Notes:
-----------------------------------------------------------------
Class Original Principal/Notional Balance Note Rate
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-1-
Note Rating:
-----------------------------------------------------------------
Class of Notes [_] [__]
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
Underwritten Notes: Class [__] Notes
Notes Retained by [the Class [__] Notes
Seller]:
Underwriters: [______]
Representative of the [_]
Underwriters:
Servicer: Fieldstone Servicing Corp. (the "Servicer")
Subservicer: [______] ("[______]," or such capacity, the "Subservicer ")
Indenture Trustee: [______], (the "Indenture Trustee")
Owner Trustee: [___] (the "Owner Trustee")
Master Servicer: [______] ("[______]" or in such capacity, the "Master
Servicer")
Trust Administrator: [______] (or in such capacity, the "Trust Administrator")
[Swap/Cap/Corridor [__]
Counterparty]:
Terms of Sale: The purchase price payable by the Underwriters for each
Class of Notes is the applicable purchase price
percentage set forth on Schedule B of the aggregate
note principal amount of each Class of Notes.
-2-
Payment of the purchase price shall be in immediately
available Federal funds wired to such bank as may be
designated by the Depositor.
The Depositor has agreed to sell to the Underwriters,
and the Underwriters have agreed to purchase from the
Depositor, the Notes in the principal amounts set forth
in Schedule B opposite their respective names.
Underwriters' [The information set forth under the captions
Information: "Underwriting" in the Prospectus and the Prospectus
Supplement.]
Underwriting
Commissions: Notwithstanding anything to the contrary in the
Underwriting Agreement, no additional underwriting
commission shall be payable by the Depositor to the
Underwriters in connection with the purchase of the
Notes.
Public offering price and/or method of determining
price at which the Underwriters will sell the Notes:
[Negotiated transactions.]
Mortgage Loans: The mortgage loans (the "Mortgage Loans") sold by
Fieldstone Investment Corporation (the "Seller") to the
Depositor pursuant to the Mortgage Loan Purchase
Agreement, dated as of [_____], 200[_], and conveyed by
the Depositor to the Trust pursuant to the Transfer and
Servicing Agreement, dated as of [_____], 200[_] (the
"Transfer and Servicing Agreement"), among the Seller,
the Depositor, the Servicer, the Subservicer, the
Indenture Trustee, the Master Servicer and the Trust
Administrator.
Payment Dates: Beginning [_____], 200[_], and thereafter on the 25th
day of each month (or if such day is not a Business
Day, then the next Business Day thereafter).
Delivery Date and 10:00 a.m., New York Time, on or about [_____], 200[_],
Location: or at such other time not later than seven full
business days thereafter as may be agreed upon, at the
offices of Hunton & ▇▇▇▇▇▇▇▇ LLP.
Terms used but not defined herein shall have the meanings assigned in the
Underwriting Agreement.
[_____], as Representative acting on behalf of the
Underwriters
By:
----------------------------------------------
-3-
Accepted:
FIELDSTONE MORTGAGE INVESTMENT CORPORATION,
as Depositor
By:
--------------------------------
-4-
Schedule A to Terms Agreement
Class [__] Class [__] Class [__] Class [__] Class [__] Class [__]
---------- ---------- ---------- ---------- ---------- ----------
Interest Rate:
[___]% [___]% [___]% [___]% [___]% [___]%
Class [__] Class [__] Class [__] Class [__] Class [__] Class [__]
---------- ---------- ---------- ---------- ---------- ----------
Interest Rate:
[___]% [___]% [___]% [___]% [___]% [___]%
----------
Other Information:
[_]
A-1
Schedule B to Terms Agreement
Approximate Purchase Price
Class of Notes Balance ($) (% of Par) [________] [________] [________] [________]
---------------- ----------- -------------- ---------- ---------- ---------- ----------
[_].............
[_].............
[_].............
[_].............
[_]............. -- -- --
[_].............
[_].............
[_].............
[_].............
[_].............
[_].............
[_].............
--------------------------------------------------------------------------------
Total...........
--------------------------------------------------------------------------------
----------
*Notional Amount of such Interest-only Notes.
B-1
FIELDSTONE MORTGAGE INVESTMENT TRUST, SERIES 2005-3
MORTGAGE-BACKED NOTES, SERIES 2005-3
TERMS AGREEMENT
November 15, 2005
To: Fieldstone Mortgage Investment Corporation, as
Depositor under the Transfer and Servicing
Agreement (as defined below)
Re: Underwriting Agreement, dated as of July 29,
2005, by and between Fieldstone Mortgage
Investment Corporation and the Underwriters
Title: Fieldstone Mortgage Investment Corporation
Mortgage-Backed Notes, Series 2005-3
Principal Amount: $1,156,009,000 (approximate)
Interest Rates: As set forth in Schedule A attached hereto.
Terms of the Notes:
Class Original Principal/Notional Balance Interest Type
----- ----------------------------------- -------------
1-A $316,989,000 Floating
2-A1 $294,358,000 Floating
2-A2 $262,801,000 Floating
2-A3 $ 15,000,000 Floating
M1 $ 44,283,000 Floating
M2 $ 41,369,000 Floating
M3 $ 27,968,000 Floating
M4 $ 19,811,000 Floating
M5 $ 19,228,000 Floating
M6 $ 18,645,000 Floating
M7 $ 18,645,000 Floating
M8 $ 15,149,000 Floating
M9 $ 12,819,000 Floating
M10 $ 20,976,000 Fixed
M11 $ 11,653,000 Fixed
-1-
M12 $ 8,740,000 Fixed
M13 $ 7,575,000 Fixed
Note Rating:
Class Fitch ▇▇▇▇▇'▇ S&P
----- ----- ------- ----
1-A AAA Aaa AAA
2-A1 AAA Aaa AAA
2-A2 AAA Aaa AAA
2-A3 AAA Aaa AAA
M1 AA+ Aa1 AA+
M2 AA Aa2 AA+
M3 AA- Aa3 AA+
M4 A+ A1 AA+
M5 A A2 AA
M6 A- A3 AA
M7 BBB+ Baa1 A+
M8 BBB Baa2 A+
M9 BBB- Baa3 A
M10 NR NR A-
M11 NR NR BBB+
▇▇▇ ▇▇ ▇▇ ▇▇▇
▇▇▇ ▇▇ ▇▇ ▇▇▇-
Notes Retained by the Seller: Class M9, Class M10, Class M11, Class M12 and
Class M13 Notes
Underwriters: Credit Suisse First Boston LLC, Bear, ▇▇▇▇▇▇▇
& Co., Inc., ▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Representative of the
Underwriters: Credit Suisse First Boston LLC
Servicer: Fieldstone Servicing Corp. (the "Servicer")
Subservicer: JPMorgan Chase Bank, National Association
("JPM," or in such capacity, the "Subservicer")
-2-
Indenture Trustee: HSBC Bank USA, National Association (the
"Indenture Trustee")
Owner Trustee: U.S. Bank Trust National Association (the
"Owner Trustee")
Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A. (in such capacity, the
"Master Servicer")
Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A. (in such capacity, the
"Trust Administrator")
Swap Counterparty: Bank of America, N.A.
Terms of Sale: The purchase price payable by the Underwriters
for each Class of Notes is the applicable
purchase price percentage set forth on Schedule
B of the aggregate note principal amount of
each Class of Notes.
Payment of the purchase price shall be in
immediately available Federal funds wired to
such bank as may be designated by the
Depositor.
The Depositor has agreed to sell to the
Underwriters, and the Underwriters have agreed
to purchase from the Depositor, the Notes in
the principal amounts set forth in Schedule B
opposite their respective names.
Underwriters' Information: The first two paragraphs and the first sentence
of the third paragraph set forth under the
caption "Method of Distribution" in the
prospectus supplement dated November 15, 2005
(the "Prospectus Supplement") and the related
prospectus dated July 1, 2005 (collectively,
the "Prospectus").
Underwriting Commissions: Notwithstanding anything to the contrary in the
Underwriting Agreement, no additional
underwriting commission shall be payable by the
Depositor to the Underwriters in connection
with the purchase of the Notes.
Public offering price and/or method of
determining price at which the Underwriters
will sell the Notes: Negotiated transactions.
Mortgage Loans: The mortgage loans (the "Mortgage Loans") sold
by Fieldstone Investment Corporation (the
"Seller") to the Depositor pursuant to the
Mortgage Loan Purchase Agreement, dated as of
November 1, 2005, and conveyed by the Depositor
to the Trust pursuant to the Transfer and
Servicing Agreement, dated as of November 1,
2005 (the "Transfer and Servicing Agreement"),
among the Seller, the Depositor, the Servicer,
the Subservicer, the Indenture Trustee,
-3-
the Master Servicer and the Trust
Administrator.
Payment Dates: Beginning December 27, 2005 and thereafter on
the 25th day of each month (or if such day is
not a Business Day, then the next Business Day
thereafter).
Delivery Date and Location: 10:00 a.m., New York Time, on or about November
23, 2005, or at such other time not later than
seven full business days thereafter as may be
agreed upon, at the offices of Hunton &
▇▇▇▇▇▇▇▇ LLP.
Terms used but not defined herein shall have the meanings assigned in the
Underwriting Agreement.
[SIGNATURE PAGE FOLLOWS]
-4-
CREDIT SUISSE FIRST BOSTON LLC, as
Representative acting on behalf of the
Underwriters
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
Title: Director
Accepted:
FIELDSTONE MORTGAGE INVESTMENT CORPORATION,
as Depositor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
[Signature Page to Fieldstone 2005-3 Terms Agreement]
Schedule A to Terms Agreement
Class 1-A Class 2-A1 Class 2-A2 Class 2-A3 Class M1 Class M2
------------ ------------ ------------ ------------ ------------ ------------
Interest Rate: LIBOR plus LIBOR plus LIBOR plus LIBOR plus LIBOR plus LIBOR plus
0.245%(1)(2) 0.120%(1)(2) 0.260%(1)(2) 0.340%(1)(2) 0.430%(1)(3) 0.450%(1)(3)
Class M3 Class M4 Class M5 Class M6 Class M7 Class M8
------------ ------------ ------------ ------------ ------------ ------------
Interest Rate: LIBOR plus LIBOR plus LIBOR plus LIBOR plus LIBOR plus LIBOR plus
0.480%(1)(3) 0.600%(1)(3) 0.630%(1)(3) 0.690%(1)(3) 1.200%(1)(3) 1.450%(1)(3)
Class M9 Class M9 Class M10 Class M11 Class M12 Class M13
------------ ------------ ------------ ------------ ------------ ------------
Interest Rate: LIBOR plus LIBOR plus 5.000%(1)(3) 5.000%(1)(3) 5.000%(1)(3) 5.000%(1)(3)
2.000%(1)(3) 2.000%(1)(3)
(1) he interest rate for each class of Notes excluding the Class M10, Class
M11, Class M12 and Class M13 Notes is the least of (i) one-month LIBOR plus
the applicable margin, (ii) the available funds rate and (iii) the fixed
rate cap of 12.250% annually. The Class M10, Class M11, Class M12 and Class
M13 Notes is equal to the lesser of (i) 5.000% per annum and (ii) the
available funds rate.
(2) If the servicer has not exercised its cleanup call on the first payment
date on which the aggregate loan balance of the mortgage loans and any
amounts on deposit in the pre-funding account at the beginning of the due
period related to that payment date is less than 10% of the sum of the
aggregate loan balance of the mortgage loans as of the initial cut-off date
and the amount on deposit in the pre-funding account on the closing date,
the margin on each of the Class 1-A, Class 2-A1, Class 2-A2 and Class 2-A3
Notes will increase on the following payment date to two times its
respective margin shown above.
(3) If the servicer has not exercised its cleanup call on the first payment
date on which the aggregate loan balance of the mortgage loans and any
amounts on deposit in the pre-funding account at the beginning of the due
period related to that payment date is less than 10% of the sum of the
aggregate loan balance of the mortgage loans as of the initial cut-off date
and the amount on deposit in the pre-funding account on the closing date,
the margin on each of the Class M1, Class M2, Class M3, Class M4, Class M5,
Class M6, Class M7, Class M8 and Class M9 notes will increase on the
following payment date to 1.5 times its respective margin shown above and
the Class M10, Class M11, Class M12 and Class M13 Notes will increase its
coupon shown above by 0.500%.
A-1
Schedule B to Terms Agreement
Purchase
Price Merrill ▇▇▇▇▇,
as a Credit Suisse ▇▇▇▇▇▇, ▇▇▇▇▇▇
Class of Approximate Percentage of First Boston Bear ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
Notes Balance ($) Par LLC & Co. Inc. Brothers Inc. Incorporated
---------------------- -------------- ------------- ------------- ------------ -------------- --------------
1-A................... $ 316,989,000 99.75% $221,892,300 $ 31,698,900 $ 31,698,900 $ 31,698,900
2-A1.................. 294,358,000 99.75% 206,050,600 29,435,800 29,435,800 29,435,800
2-A2.................. 262,801,000 99.75% 183,960,700 26,280,100 26,280,100 26,280,100
2-A3.................. 15,000,000 99.75% 10,500,000 1,500,000 1,500,000 1,500,000
M1.................... 44,283,000 99.75% 30,998,100 4,428,300 4,428,300 4,428,300
M2.................... 41,369,000 99.75% 28,958,300 4,136,900 4,136,900 4,136,900
M3.................... 27,968,000 99.75% 19,577,600 2,796,800 2,796,800 2,796,800
M4.................... 19,811,000 99.75% 13,867,700 1,981,100 1,981,100 1,981,100
M5.................... 19,228,000 99.75% 13,459,600 1,922,800 1,922,800 1,922,800
M6.................... 18,645,000 99.75% 13,051,500 1,864,500 1,864,500 1,864,500
M7.................... 18,645,000 99.75% 13,051,500 1,864,500 1,864,500 1,864,500
M8.................... 15,149,000 99.75% 10,604,300 1,514,900 1,514,900 1,514,900
M9.................... 12,819,000 100.00% 12, 819,000 -- -- --
M10................... 20,976,000 100.00% 20,976,000 -- -- --
M11................... 11,653,000 100.00% 11,653,000 -- -- --
M12................... 8,740,000 100.00% 8,740,000 -- -- --
M13................... 7,575,000 100.00% 7,575,000 -- -- --
-------------- ------------ ------------ ------------ ------------
Total................. $1,156,009,000 99.76% $827,735,200 $109,424,600 $109,424,600 $109,424,600
B-1
