EXHIBIT 1.1
$[ ]
BOND SECURITIZATION, L.L.C.
[ ] Home Equity Loan Trust 200_-_
Home Equity Loan Asset-Backed Notes, Series 200_-_[ ], Class A Notes
UNDERWRITING AGREEMENT
[Date]
[Underwriters]
Ladies and Gentlemen:
Bond Securitization, L.L.C. (the "Depositor"), has entered into a
Trust Agreement dated as of (the "Trust Agreement") with [Owner Trustee] (the
"Owner Trustee") and [ ], as seller creating [ ] Home Equity Loan Trust 200_-_
(the "Trust"), a statutory business trust established under the laws of the
State of Delaware. The Depositor proposes to direct the Owner Trustee pursuant
to the Trust Agreement to cause the Trust to issue Home Equity Loan Trust
Series 200_-_, Class A Notes (the "Class A Notes") and a single class of
ownership interests (the "Ownership Interests" and, together with the Class A
Notes, the "Securities").
Only the Class A Notes are being purchased by [Underwriter] (each, an
"Underwriter" and collectively, the "Underwriters"), severally and not
jointly, in the amount set forth opposite their names on Schedule A attached
hereto, except that the amount purchased by each Underwriter may change in
accordance with Section X of this Agreement.
The Class A Notes will be secured by the assets of the Trust
consisting of a pool of [closed-end, fixed-rate home equity mortgage loans
secured by first or second deeds of trust and mortgages primarily on one-to
four-family residential properties] (the "Mortgage Loans") conveyed to the
Trust by the Depositor pursuant to a sale and servicing agreement dated as of
[ ] (the "Sale and Servicing Agreement") among the Depositor, the Trust,
[Indenture Trustee], as indenture trustee (the "Indenture Trustee") and
[ ], as seller (the "Seller") and servicer (the "Servicer"). The
Depositor will acquire the Mortgage Loans, simultaneously with the execution of
the Sale and Servicing Agreement, pursuant to a mortgage loan purchase
agreement dated as of [ ](the "Purchase Agreement") between the Depositor,
as purchaser and [Seller], as seller, pursuant to which the Seller will
transfer to the Depositor all of its right, title and interest in and to the
Mortgage Loans after the Cut-Off Date and the collateral securing each Mortgage
Loan.
The Class A Notes will be issued pursuant to an indenture to be dated
as of [ ] (the "Indenture") between the Trust, as issuer and the Indenture
Trustee. The Ownership Interests will evidence fractional undivided interests
in the property held in the Trust and evidence the right to receive amounts in
respect of the Senior Interest Participation and the Transferor Interest (as
defined in the Trust Agreement). The aggregate principal balance of the Class
A Notes initially will be equal to $[ ], which represents
approximately 100% of the outstanding principal balances of the Mortgage Loans
as of the close of business on [ ] (the "Cut-Off Date").
The Class A Notes and the Senior Interest Participation will have the
benefit of a financial guaranty insurance policy (the "Policy") issued by
[Insurer], a stock insurance corporation organized under the laws of the State
of New York (the "Insurer") pursuant to an Insurance and Reimbursement
Agreement (the "Insurance Agreement") to be dated as of [ ] among the
Depositor, the Seller and the Servicer, the Indenture Trustee, [ ] and the
Insurer. Forms of the Indenture, the Sale and Servicing Agreement, the Trust
Agreement and the Policy have been filed as an exhibit to the Registration
Statement (hereinafter defined).
The Class A Notes are more fully described in a Registration
Statement which the Depositor has furnished to the Underwriters. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Sale and Servicing Agreement.
This Underwriting Agreement, the Sale and Servicing Agreement, the
Insurance Agreement and the Purchase Agreement are referred to collectively
herein as the "Agreements."
Section I. Representations and Warranties of the Depositor. The
Seller represents and warrants to, and agrees with the Underwriters that:
A. A Registration Statement on Form S-3 (No. 333-[ ]) has (i) been
prepared by the Depositor in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act") and the rules and
regulations (the "Rules and Regulations") of the United States Securities and
Exchange Commission (the "Commission") thereunder, (ii) been filed with the
Commission under the Securities Act and (iii) become effective under the
Securities Act. Copies of such Registration Statement have been delivered by
the Depositor to the Underwriters. As used in this Agreement, "Effective Time"
means the date and the time as of which such Registration Statement, or the
most recent post-effective amendment thereto, if any, was declared effective
by the Commission; "Effective Date" means the date of the Effective Time;
"Registration Statement" means such registration statement, at the Effective
Time, including any documents incorporated by reference therein at such time;
and "Prospectus" means such final prospectus, as first supplemented by a
prospectus supplement (the "Prospectus Supplement") relating to the Class A
Notes, as first filed with the Commission pursuant to paragraph (1), (4) or
(5) of Rule 424(b) of the Rules and Regulations. 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 Securities 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
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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 filed with the Commission with respect to the Trust
pursuant to Section 13(a) or 15(d) of the Exchange Act after the date of the
Prospectus that is incorporated by reference in the Registration Statement.
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. The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
To the extent that any Underwriter (i) has provided to the
Depositor Collateral term sheets (as hereinafter defined) that such
Underwriter has provided to a prospective investor, the Depositor has filed
such Collateral term sheets as an exhibit to a report on Form 8-K within two
business days of its receipt thereof, or (ii) has provided to the Depositor
Structural term sheets or Computational Materials (each as defined below) that
such Underwriter has provided to a prospective investor, the Depositor will
file or cause to be filed with the Commission a report on Form 8-K containing
such Structural term sheet and Computational Materials, as soon as reasonably
practicable after the date of this Agreement, but in any event, not later than
the date on which the Prospectus is filed with the Commission pursuant to Rule
424 of the Rules and Regulations.
B. The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission,
as the case may be, conform in all 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 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 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 the Underwriters expressly for use
therein.
C. The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material
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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.
D. Since the respective dates as of which information 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, otherwise than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
E. The Depositor has been duly organized and is validly existing as a
limited liability company in good standing under the laws of its jurisdiction
of incorporation, is duly qualified to do business and is in good standing as
a foreign company in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, and has
all power and authority necessary to own or hold its properties, to conduct
the business in which it is engaged and to enter into and perform its
obligations under the Agreements and to cause the Securities to be issued.
F. There are no actions, proceedings or investigations pending before
or threatened by any court, administrative agency or other tribunal to which
the Depositor is a party or of which any of its properties is the subject (a)
which if determined adversely to the Depositor would have a material adverse
effect on the business or financial condition of the Depositor, (b) asserting
the invalidity of the Agreements or the Securities, (c) seeking to prevent the
issuance of the Securities or the consummation by the Depositor of any of the
transactions contemplated by any of the Agreements or (d) which might
materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, any of the Agreements
or the Securities.
G. This Agreement has been, and the Sale and Servicing Agreement, the
Purchase Agreement and the Insurance Agreement when executed and delivered as
contemplated hereby and thereby will have been, duly authorized, executed and
delivered by the Depositor, and this Agreement constitutes, and the Sale and
Servicing Agreement, the Purchase Agreement and the Insurance Agreement, when
executed and delivered as contemplated herein, will constitute, legal, valid
and binding instruments enforceable against the Depositor in accordance with
their respective terms, subject as to enforceability to (x) applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally, (y) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law), and (z) with respect to rights of indemnity under this Agreement, the
Purchase Agreement and the Insurance Agreement, limitations of public policy
under applicable securities laws.
H. The execution, delivery and performance of the Agreements by the
Depositor and the consummation of the transactions contemplated hereby and
thereby, and the issuance and delivery of the Securities do not and will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Depositor
is a party, by which the Depositor is bound or to which any of the property or
assets of the Depositor or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the certificate of
formation or limited liability company agreement of the Depositor or any
statute or
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any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Depositor or any of its properties or assets.
I. [ ] are independent public accountants with respect to the
Depositor as required by the Securities Act and the Rules and Regulations.
J. The Class A Notes are duly and validly authorized and, when
executed, authenticated and delivered in accordance with the Indenture and the
Sale and Servicing Agreement, and issued and delivered to and paid for by the
Underwriters, as contemplated hereby, will be entitled to the benefits
provided by the Indenture and the Sale and Servicing Agreement.
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States is required for the issuance of the Class A Notes and the sale
of the Class A Notes to the Underwriters, or the consummation by the Depositor
of the other transactions contemplated by the Agreements, except such
consents, approvals, authorizations, registrations or qualifications as may be
required under State securities or Blue Sky laws in connection with the
purchase and distribution of the Class A Notes by the Underwriters, or as have
been obtained.
L. At the time of execution and delivery of the Sale and Servicing
Agreement and the Trust Agreement, the Depositor will: (i) have equitable
title to the interest in the Mortgage Loans conveyed by the Seller, 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 Owner Trustee) any of its right, title or interest in
the Mortgage Loans, in the Purchase Agreement or in the Sale and Servicing
Agreement; and (iii) have the power and authority to transfer its interest in
the Mortgage Loans to the Trust and to sell the Class A Notes to the
Underwriters. Upon execution and delivery of the Sale and Servicing Agreement
and the Trust Agreement by the parties thereto, the Trust will have acquired
beneficial ownership of all of the Depositor's right, title and interest in
and to the Mortgage Loans. Upon delivery to the Underwriters of the Class A
Notes, the Underwriters will have good title to the Class A Notes free of any
Liens.
M. Neither the Depositor nor the Trust created by the Trust Agreement
is an "investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended (the "1940 Act"), and the rules and
regulations of the Commission thereunder.
N. At the Closing Date, the Class A Notes, the Sale and Servicing
Agreement and the Purchase Agreement will conform in all material respects to
the descriptions thereof contained in the Prospectus.
O. At the Closing Date, the Class A Notes shall have been rated in
the highest rating category by at least two nationally recognized rating
agencies
P. Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of the Agreements and
the Securities have been paid or will be paid at or prior to
the Closing Date.
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Any certificate signed by an officer of the Depositor and delivered
to the Underwriters or counsel for the Underwriters in connection with an
offering of the Class A Notes shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby to each person
to whom the representations and warranties in this Section I are made.
Section II. Purchase and Sale. The commitment of the Underwriters to
purchase the Class A Notes pursuant to this Agreement shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the satisfaction of the terms and conditions set forth
herein. The Depositor agrees to sell to the Underwriters, and the Underwriters
severally agree (except as provided in Sections X and XI hereof) to purchase
from the Depositor, the Class A Notes in the principal amounts set forth
opposite their names and at the purchase price set forth in Schedule A hereto.
Section III. Delivery and Payment. Delivery of and payment for the
Class A Notes to be purchased by the Underwriters shall be made at the offices
of [Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000], or at such other place as shall be agreed upon by the Underwriters and
the Depositor at 10:00 a.m. New York City time on [ ] or at such other time or
date as shall be agreed upon in writing by the Underwriters and the Depositor
(such date being referred to as the "Closing Date"). Payment shall be made to
the Depositor by wire transfer of same day funds payable to the account of the
Depositor. Delivery of the Class A Notes shall be made to the Underwriters for
the account of the Underwriters against payment of the purchase price thereof.
The Class A Notes shall be in such denominations and registered in such names
as the Underwriters may request in writing at least two business days prior to
the Closing Date. The Class A Notes will be made available for examination by
the Underwriters no later than 2:00 p.m. New York City time on the first
business day prior to the Closing Date.
Section IV. Offering by the Underwriters. It is understood that,
subject to the terms and conditions hereof, the Underwriters propose to offer
the Class A Notes for sale to the public as set forth in the Prospectus.
Section V. Covenants of the Depositor. The Depositor agrees as
follows:
A. To prepare the Prospectus in a form approved by the Underwriters
and to file such Prospectus pursuant to Rule 424(b) under the Securities Act
not later than the Commission's close of business on the second business day
following the execution and delivery of this Agreement; to make no further
amendment or any supplement to the Registration Statement or to the Prospectus
prior to the Closing Date except as permitted herein; to advise the
Underwriters, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed and
to furnish the Underwriters with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be filed by the
Depositor with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and, for so long as
the delivery of a prospectus is required in connection with the offering or
sale of the Class A Notes, to promptly advise the Underwriters of its receipt
of notice of the issuance by the Commission of any stop order or of: (i) any
order preventing or suspending the use of the Prospectus; (ii) the suspension
of the
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qualification of the Class A Notes for offering or sale in any jurisdiction;
(iii) the initiation of or threat of any proceeding for any such purpose; (iv)
any request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information. In the
event of the issuance of any stop order or of any order preventing or
suspending the use of the Prospectus or suspending any such qualification, the
Depositor promptly shall use its best efforts to obtain the withdrawal of such
order by the Commission.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case including exhibits); (ii)
the Prospectus and any amended or supplemented Prospectus; and (iii) any
document incorporated by reference in the Prospectus (including exhibits
thereto). If the delivery of a prospectus is required at any time prior to the
expiration of nine months after the Effective Time in connection with the
offering or sale of the Class A Notes, and if at such time any events shall
have occurred 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 any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Securities Act or the Exchange Act, the
Depositor shall notify the Underwriters and, upon the Underwriters' request,
shall file such document and prepare and furnish without charge to the
Underwriters and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which corrects such statement or omission or
effects such compliance, and in case the Underwriters are required to deliver
a Prospectus in connection with sales of any of the Class A Notes at any time
nine months or more after the Effective Time, upon the request of the
Underwriters but at such requesting party's expense, the Depositor shall
prepare and deliver to the Underwriters as many copies as the Underwriters may
reasonably request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Securities Act.
D. To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Depositor or the Underwriters, be required by
the Securities Act or requested by the Commission.
E. Prior to filing with the Commission any (i) supplement to the
Prospectus, or document incorporated by reference in the Prospectus, or (ii)
Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a
copy thereof to the Underwriters and counsel for the Underwriters and obtain
the consent of the Underwriters to the filing.
F. To make generally available to holders of the Class A Notes as
soon as practicable, but in any event not later than 90 days after the close
of the period covered thereby, an earning
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statement of the Trust (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations (including, at the
option of the Depositor, Rule 158) and covering a period of at least twelve
consecutive months beginning not later than the first day of the first fiscal
quarter following the Closing Date.
G. To use its best efforts, in cooperation with the Underwriters, to
qualify the Class A Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Underwriters may designate, and maintain or cause to be maintained such
qualifications in effect for as long as may be required for the distribution
of the Class A Notes. The Depositor will file or cause the filing of such
statements and reports as may be required by the laws of each jurisdiction in
which the Class A Notes have been so qualified.
H. So long as the Class A Notes shall be outstanding, to deliver to
the Underwriters as soon as such statements are furnished to the Indenture
Trustee: (i) the annual statement as to compliance delivered to the Indenture
Trustee pursuant to Section 3.10 of the Sale and Servicing Agreement; (ii) the
annual statement of a firm of independent public accountants furnished to the
Indenture Trustee pursuant to Section 3.11 of the Sale and Servicing
Agreement; and (iii) the Monthly Statement furnished to the Noteholders
pursuant to Section 5.03 of the Sale and Servicing Agreement.
I. To apply the net proceeds from the sale of the Class A Notes in
the manner set forth in the Prospectus.
Section VI. Conditions to the Underwriters' Obligations. The
obligation of the Underwriters to purchase the Class A Notes pursuant to this
Agreement is subject to: (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Depositor herein contained;
(ii) the performance by the Depositor of all of its obligations hereunder; and
(iii) the following conditions as of the Closing Date:
A. The Underwriters shall have received confirmation of the
effectiveness of the Registration Statement. No stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission. Any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus shall
have been complied with.
B. No Underwriter shall have discovered and disclosed to the
Depositor on or prior to the Closing Date that the Registration Statement or
the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact or omits to state a fact which, in the opinion of [ ],
counsel for the Underwriters, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
C. All corporate proceedings and other legal matters relating to the
authorization, form and validity of the Agreements, the Class A Notes, the
Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
satisfactory in all respects to counsel for the Underwriters, and the
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Depositor shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such matters.
D. [Sidley Xxxxxx Xxxxx & Xxxx LLP] shall have furnished to the
Underwriters their written opinion, as counsel to the Depositor, addressed to
the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
1. The conditions to the use by the Depositor of a
registration statement on Form S-3 under the Securities Act,
as set forth in the General Instructions to Form S-3, have
been satisfied with respect to the Registration Statement.
2. The Registration Statement and any amendments thereto
have become effective under the Securities Act; to the best
of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and not withdrawn and no proceedings for that purpose have
been instituted or threatened and not terminated; and the
Registration Statement, the Prospectus and each amendment or
supplement thereto, as of their respective effective or
issue dates (in each case, other than the documents
incorporated therein by reference, including without
limitation, the Derived Information (as defined below) filed
by the Depositor with the Commission on Form 8-K) and the
financial and statistical information contained therein, as
to which such counsel need express no opinion), complied as
to form in all material respects with the applicable
requirements of the Securities Act and the rules and
regulations thereunder.
3. To such counsel's knowledge, there are no material
contracts, indentures or other documents of a character
required to be described or referred to in the Registration
Statement or the Prospectus or to be filed as exhibits to
the Registration Statement other than those described or
referred to therein or filed or incorporated by reference as
exhibits thereto.
4. The statements in the base Prospectus under the headings
["Summary of Terms--Federal Income Tax Considerations," and
"--ERISA Considerations" and, "Certain Legal Aspects of
Loans," "ERISA Considerations" and "Certain Federal Income
Tax Considerations," and the statements in the Prospectus
Supplement under the headings "Summary--Certain Federal Tax
Considerations," and "--ERISA Considerations," "Certain
Federal Income Tax Consequences," and "ERISA
Considerations,"] to the extent that they constitute matters
of federal law or legal conclusions with respect thereto,
have been reviewed by such counsel and are correct in all
material respects with respect to those consequences or
aspects that are discussed.
5. The Sale and Servicing Agreement and the Trust Agreement
conform in all material respects to the descriptions thereof
contained in the Prospectus Supplement and are not required
to be qualified under the Trust Indenture Act of 1939, as
amended. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended.
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6. Neither the Depositor nor the Trust is an "investment
company" or under the control of an "investment company" as
such terms are defined in the Investment Company Act of
1940, as amended and the Trust is not required to be
registered under the Investment Company Act of 1940, as
amended.
7. The Class A Notes will, when issued, conform to the
description thereof contained in the Prospectus.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date, in form
and substance satisfactory to the Underwriters to the effect that no facts
have come to the attention of such counsel which lead them to believe that:
(a) the Registration Statement (other than the documents incorporated therein
by reference (including, without limitation, the Derived Information (as
defined below)) and the financial and statistical information contained
therein, as to which no opinion shall be given) at the time it became
effective, or at the date of such opinion, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (b) the Purchaser Information (as defined in the Purchase
Agreement) in the Prospectus (other than the information incorporated therein
by reference, including, without limitation, the Derived Information) and the
financial, statistical and numerical information contained therein, as to
which no opinion shall be expressed, contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
E. The Underwriters shall have received the favorable opinion, dated
the Closing Date, of [Sidley Xxxxxx Xxxxx & Xxxx LLP], counsel for the
Depositor, addressed to the Depositor and satisfactory to the Insurer, [and
the Rating Agencies] (the "Rating Agencies") and the Underwriters, with
respect to certain matters relating to the transfer of the Mortgage Loans to
the Trust, and such counsel shall have consented to reliance on such opinion
by the Rating Agencies as though such opinion had been addressed to them.
F. The Underwriters shall have received the favorable opinion, dated
the Closing Date, of [ ], special counsel to [the Seller], addressed to the
Depositor, the Insurer and the Underwriters and satisfactory to the Rating
Agencies and the Insurer, with respect to certain matters relating to the
transfer of the Mortgage Loans to the Depositor, and such counsel shall have
consented to reliance on such opinion by the Rating Agencies as though such
opinion had been addressed to them.
G. [ ], counsel to [the Seller] shall have furnished to the
Underwriters their opinion addressed to the Underwriters, the Depositor and
the Insurer, dated the Closing Date, in form and substance satisfactory to the
Underwriters relating to general corporate matters with respect to [the
Seller].
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date, in form
and substance satisfactory to the Underwriters to the effect that no facts
have come to the attention of such counsel which lead them to believe that the
information in the Prospectus Supplement (other than the Purchaser
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Information and other than the financial, statistical and numerical
information contained therein, as to which no opinion shall be expressed),
contained or contains an untrue statement or a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
H. [Sidley Xxxxxx Xxxxx & Xxxx LLP], counsel for the Depositor, shall
have furnished to the Underwriters its written opinion, addressed to the
Underwriters and dated the Closing Date, in form and substance satisfactory to
the Underwriters, to the effect that:
1. The Depositor has been duly organized and is validly
existing as a limited liability company in good standing
under the laws of Delaware, and has all power and authority
necessary to own or hold its properties and to conduct the
business in which it is engaged and to enter into and
perform its obligations under the Agreements and to cause
the issuance of the Notes.
2. Each of the Agreements has been duly authorized, executed
and delivered by the Depositor and, assuming the due
authorization, execution and delivery of the Agreements by
the other parties thereto, each of the Agreements
constitutes a valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with their
respective terms.
3. The execution, delivery and performance of the Agreements
by the Depositor, and the consummation of the transactions
contemplated thereby, do not and will not result in a
material breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Depositor is a party or by which
the Depositor is bound or to which any of the property or
assets of the Depositor is subject, nor will such actions
result in any violation of the provisions of the certificate
of formation or limited liability company agreement of the
Depositor or, to such counsel's knowledge without
independent investigation, any statute or any order, rule or
regulation of any court or governmental agency or body
having jurisdiction over the Depositor or any of its
properties or assets (except for such conflicts, breaches,
violations and defaults as would not have a material adverse
effect on the ability of the Depositor to perform its
obligations under the Agreements).
4. To such counsel's knowledge, without any independent
investigation, no consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body of the United States or any
other jurisdiction is required for the issuance of the
Securities and the sale of the Class A Notes to the
Underwriters, or the consummation by the Depositor of the
other transactions contemplated by the Agreements, except
such consents, approvals, authorizations, registrations or
qualifications as (a) may be required under State securities
or Blue Sky laws, (b) have been previously obtained or (c)
the failure of which to obtain would not have a material
adverse effect on the performance by the Depositor of its
obligations under, or the validity or enforceability of, the
Agreements.
11
5. There are no actions, proceedings or investigations
pending before or threatened by any court, administrative
agency or other tribunal to which the Depositor is a party
or of which any of its properties is the subject: (a) which
if determined adversely to the Depositor would have a
material adverse effect on the business, results of
operations or financial condition of the Depositor; (b)
asserting the invalidity of the Agreements or the
Securities; (c) seeking to prevent the issuance of the
Securities or the consummation by the Depositor of any of
the transactions contemplated by the Agreements, as the case
may be; (d) which might materially and adversely affect the
performance by the Depositor of its obligations under, or
the validity or enforceability of, the Agreements.
I. (a)[ ], special counsel for [the Seller], shall have furnished to
the Underwriters his written opinion, as counsel for [the Seller], addressed
to the Underwriters and the Depositor, dated the Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that:
1. [the Seller] has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the State of [ ] and has all requisite corporate power and
authority to own its properties and carry on its business
and to execute, deliver and perform its duties under the
Sale and Servicing Agreement and the Purchase Agreement.
2. Each of the Sale and Servicing Agreement and the Purchase
Agreement have been duly authorized, executed and delivered
by [the Seller], and constitutes the legal, valid and
binding agreements of [the Seller], enforceable against [the
Seller] in accordance with its terms, subject to the effect
of (x) bankruptcy, insolvency, moratorium, fraudulent
conveyance and similar laws relating to creditors' rights
generally and court decisions with respect thereto and (y)
public policy considerations regarding the enforcement of
the indemnity provisions in the Purchase Agreement (other
than the application of equitable principles in any
proceeding, whether at law or in equity, as to which no
opinion need be expressed).
3. No consent, approval, authorization or order of,
registration or filing with, or notice to, any court or
governmental agency or body is required under any state or
federal statute or regulation applicable to [the Seller] for
the execution, delivery or performance by [the Seller] of,
or compliance by [the Seller] with, the Sale and Servicing
Agreement and the Purchase Agreement, except such as may be
required under the blue sky laws of any jurisdiction.
4. The transfer and assignment of each Mortgage Loan by [the
Seller] to the Indenture Trustee, as assignee of the
Depositor, as contemplated by the Sale and Servicing
Agreement and the Purchase Agreement is sufficient to
constitute the Indenture Trustee the noteholder of the
related Mortgage Note and the beneficiary under the related
mortgage or deed of trust.
5. The information in the Prospectus Supplement contained
under the headings : [ ] (other than the
12
financial and statistical data contained in such section, as
to which such counsel need express no opinion) does not
contain an untrue statement of a material fact and does not
omit to state a material fact necessary to make the
statements therein in light of the circumstances under which
they were made not misleading.
(b) [ ], counsel to [the Seller], shall have furnished to the
Underwriters his written opinion, as counsel to [the Seller], addressed to the
Underwriters and the Depositor, dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
1. Neither the transfer of the Mortgage Loans as provided by
the Sale and Servicing Agreement nor the consummation of the
transactions contemplated by or the fulfillment of the terms
of the Sale and Servicing Agreement (i) will result in a
breach of any term or provision of the certificate of
incorporation or bylaws of [the Seller], (ii) will result in
a breach, violation or acceleration of, or constitute a
default under the terms of, any indenture or other material
agreement or instrument to which [the Seller] is a party or
by which it is bound or subject, or (iii) will result in a
material breach of any statute or regulation presently
applicable to [the Seller] or any order, writ, injunction or
decree of any court, governmental agency or regulatory body
to which [the Seller] is subject or by which its or its
properties are bound.
2. There is no action, suit, proceeding or investigation
pending or, to such counsel's knowledge, threatened against
[the Seller] which, in such counsel's judgement, either in
any one instance or in the aggregate would draw into
question the validity or enforceability of the Sale and
Servicing Agreement or the Purchase Agreement or the Notes
or of any action taken or to be taken in connection with the
transaction contemplated thereby, or which would be likely
to impair materially the ability of [the Seller] to perform
its obligations under the terms of the Sale and Servicing
Agreement.
J. The Underwriters shall have received the favorable opinion of
counsel to the Indenture Trustee, dated the Closing Date, addressed to the
Underwriters and the Depositor and in form and scope satisfactory to counsel
to the Underwriters, to the effect that:
1. The Indenture Trustee is a national banking association
with trust powers, duly organized and validly existing in
good standing under the laws of the United States, and has
all requisite power and authority to enter into the Sale and
Servicing Agreement, the Indenture, the Administration
Agreement and the Insurance Agreement and perform its
obligations thereunder.
2. The Sale and Servicing Agreement, the Indenture, the
Administration Agreement and the Insurance Agreement have
been duly authorized, executed and delivered by the
Indenture Trustee and, assuming the due authorization,
execution and delivery thereof by the other parties thereto,
constitute the legal, valid and binding obligations of the
Indenture Trustee, enforceable against the Indenture Trustee
in accordance with their respective terms, subject to
bankruptcy laws and other similar laws of general
application affecting creditors' rights and subject to
13
the application of the rules of equity, including those
respecting the availability of specific performance.
3. No consent, approval, authorization or other action by,
or filing with, any court or governmental agency or
authority having jurisdiction over the banking or trust
powers of the Indenture Trustee is required in connection
with its execution and delivery of the Sale and Servicing
Agreement, the Indenture, the Administration Agreement and
the Insurance Agreement, according to their respective
terms.
4. The execution, delivery and performance of the Sale and
Servicing Agreement, the Indenture, the Administration
Agreement and the Insurance Agreement do not result in a
violation of (a) any law or regulation of the United States
governing the banking or trust powers of the Indenture
Trustee or any order, writ, judgement or decree of any
court, arbitrator or governmental authority applicable to
the Indenture Trustee or any of its assets or (b) the
articles of association or by-laws of the Indenture Trustee.
5. The Class A Notes have been authenticated and delivered
by the Indenture Trustee in accordance with the Indenture.
6. There are no actions, proceedings or investigations
pending or threatened against or affecting the Indenture
Trustee before or by any court, arbitrator, administrative
agency or other governmental authority which, if decided
adversely to the Indenture Trustee, would materially and
adversely affect the ability of the Indenture Trustee to
carry out the transactions contemplated in the Sale and
Servicing Agreement, the Indenture, the Administration
Agreement or the Insurance Agreement.
K. The Underwriters shall have received the favorable opinion or
opinions, dated the date of the Closing Date, of counsel for the Underwriters,
with respect to the issue and sale of the Class A Notes, the Registration
Statement, this Agreement, the Prospectus and such other related matters as
the Underwriters may reasonably require.
L. The Underwriters shall have received the favorable opinion, dated
the Closing Date of [ ], counsel to the Owner Trustee, with respect to the
issue and sale of the Class A Notes and the Ownership Interests, the status of
the Trust, the Trust Agreement, perfections of applicable security interests
and such other matters as the Underwriters may reasonably require.
M. The Underwriters shall have received the favorable opinion, dated
the Closing Date, of [ ] counsel to the Insurer ("Insurer Counsel") in form
and scope satisfactory to counsel for the Underwriters, to the effect that:
1. The Insurer is a stock insurance corporation, duly
incorporated and validly existing under the laws of the
State of [ ] and is licensed and has the power and
authority to issue the Policy under the laws of the
State of [ ].
14
2. The Policy has been duly authorized, executed and
delivered and is the valid and binding obligation of the
Insurer enforceable in accordance with its terms, except
that the enforcement of the Policy may be limited by laws
relating to bankruptcy, insolvency, reorganization,
moratorium, receivership and other similar laws affecting
creditors' rights generally and by general principles of
equity (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
3. The Insurer has the power and authority to perform its
obligations under the Insurance Agreement and the
Indemnification Agreement and the Insurance Agreement and
the Indemnification Agreement have been duly executed and
are the valid and binding obligations of the Insurer, each
enforceable in accordance with its terms, except that the
enforcement of the Insurance Agreement and the
Indemnification Agreement may be limited by laws relating to
bankruptcy, insolvency, reorganization, moratorium,
receivership and other similar laws affecting creditors'
rights generally and by general principles of equity and, in
the case of the Indemnification Agreement, subject to
principles of public policy limiting the right to enforce
the indemnification provisions contained therein insofar as
such provisions relate to indemnification for liabilities
arising under the securities laws.
4. No consent, approval, authorization, filing or order of
any state or federal court or governmental agency or body is
required on the part of the Insurer the lack of which would
adversely affect the validity and enforceability of the
Policy.
5. The execution, delivery and performance by the Insurer of
its obligations under the Policy do not contravene any
provision of the charter or by-laws of the Insurer. The
execution, delivery and performance by the Insurer of its
obligations under the Policy do not, to the extent that
either of the following would affect the validity or
enforceability of the Policy, (a) contravene any law or
government regulation or order presently binding on the
Insurer or (b) contravene any provision of or constitute a
default under any indenture, contract or other instrument to
which the Insurer is a party or by which it is bound.
6. To the extent that the Policy constitutes a security
within the meaning of Section 2(l) of the Securities Act, it
is a security exempt from the registration requirements of
the Securities Act.
7. The description of the Policy in the Prospectus
Supplement under the headings ["The Insurer" and
"Description of the Notes--The Policy"] is, to the extent
that such description constitutes statements of matters of
law or legal conclusions with respect thereto, accurate in
all material respects; provided, however, that no opinion
need be expressed as to the accuracy of any financial
statements or other financial or statistical data contained
in or omitted from the Prospectus Supplement, including such
statements or other information included under such caption
or in any appendix to the Prospectus Supplement.
15
N. The Depositor shall have furnished to the Underwriters a
certificate, dated the Closing Date, of its Chairman of the Board, its
President, a Managing Director, a Senior Vice President or a Vice President
stating that:
1. The representations and warranties of the Depositor in
Section I of this Agreement are true and correct as of the
Closing Date; and the Depositor has complied with all its
agreements contained herein.
2. Such person has carefully examined the Registration
Statement and the Prospectus and, in his opinion (x) as of
the Effective Date, the Registration Statement and
Prospectus did not include an untrue statement of a material
fact and did not omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading, and (y) since the Effective Date no
event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or the
Prospectus.
O. The Indenture Trustee shall have furnished to the Underwriters and
the Transferor a certificate of the Indenture Trustee, signed by one or more
duly authorized officers of the Indenture Trustee, dated the Closing Date, as
to the due authorization, execution and delivery of the Sale and Servicing
Agreement, the Indenture and the Insurance Agreement by the Indenture Trustee
and the acceptance by the Indenture Trustee of the trusts created thereby and
the due authentication and delivery of the Class Notes by the Indenture
Trustee under the Indenture and such other matters as the Underwriters shall
reasonably request.
P. The Policy shall have been issued by the Insurer and shall have
been duly authenticated by an authorized agent of the Insurer, if so required
under applicable state law or regulations.
Q. The Class A Notes shall have been rated at least ["AAA"] by [the
Rating Agencies].
R. The Underwriters shall have received at or before the Closing
Date, from [Accountant], letters, dated as of the date of this Agreement,
satisfactory in form and content (the "Initial Letters") and bring-down
letters dated as of the Closing Date, (i) confirming that they are independent
public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of
accountants under Rule 201 of Regulation S-X of the Commission, (ii) stating
the conclusions and findings of such firm with respect to the financial
information and other matters covered by its letter, and (iii) in the case of
the bring-down letters, confirming in all material respects the conclusions
and findings set forth in the Initial Letters.
S. Prior to the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Class A Notes as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions herein contained, and
all proceedings taken by the Depositor in connection with the issuance and
sale of the Class A Notes as herein
16
contemplated shall be satisfactory in form and substance to the Underwriters
and counsel for the Underwriters.
T. Subsequent to the execution and delivery of this 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 market, or by any other regulatory body or governmental
authority having jurisdiction; (ii) a banking moratorium shall have been
declared by Federal or state authorities; (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation of
hostilities involving the United States or there shall have been a declaration
of a national emergency or 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) as to make it, in the
judgment of the Underwriters, impractical or inadvisable to proceed with the
public offering or delivery of the Class A Notes on the terms and in the
manner contemplated in the Prospectus.
If any condition specified in this Section VI shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the Depositor at any time at or
prior to the Closing Date, and such termination shall be without liability of
any party to any other party except as provided in Section VII herein.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
Section VII. Payment of Expenses. As between the Depositor and the
Underwriters, the Depositor agrees to pay: (a) the costs incident to the
authorization, issuance, sale and delivery of the Class A Notes and any taxes
payable in connection therewith; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), the
Prospectus and any amendment or supplement to the Prospectus or any document
incorporated by reference therein, all as provided in this Agreement; (d) the
costs of reproducing and distributing this Agreement; (e) the fees and
expenses of qualifying the Class A Notes under the securities laws of the
several jurisdictions as provided in Section V(G) hereof and of preparing,
printing and distributing a Blue Sky Memorandum and a Legal Investment Survey
(including related fees and expenses of counsel to the Underwriters); (f) any
fees charged by securities rating services for rating the Class A Notes; and
(g) all other costs and expenses incident to the performance of the
obligations of the Depositor (including costs and expenses of Underwriters'
counsel); provided that, except as provided in this Section VII, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Class A Notes which they
may sell and the expenses of advertising any offering of the Class A Notes
made by the Underwriters.
17
If this Agreement is terminated by the Underwriters in accordance
with the provisions of Section VI, Section X or Section XI herein, the
Depositor shall reimburse the Underwriters for all reasonable out-of-pocket
expenses, including fees and disbursements of [ ].
Section VIII. Indemnification and Contribution. A. The Depositor
agrees to indemnify and hold harmless the Underwriters and each person, if
any, who controls the Underwriters within the meaning of Section 15 of the
Securities Act from and against any and all loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases and
sales of the Class A Notes), to which the Underwriters or any such controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, (ii) 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, (iii) any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus or
(iv) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading and
shall reimburse the Underwriters and each such controlling person promptly
upon demand for any legal or other expenses reasonably incurred by the
Underwriters or such controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Depositor shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in the Prospectus or the Registration Statement in reliance upon and in
conformity with written information furnished to the Depositor by or on behalf
of the Underwriters specifically for inclusion therein. The foregoing
indemnity agreement is in addition to any liability which the Depositor may
otherwise have to the Underwriters or any controlling person of the
Underwriters.
B. Each Underwriter, severally, and not jointly, agrees 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 Securities Act against
any and all loss, claim, damage or liability, or any action in respect
thereof, to which the Depositor or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, (ii) 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, (iii) any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus or
(iv) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, but
in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was (x) made in reliance upon and in
conformity with written information furnished to the Depositor by or on behalf
of the Underwriters specifically for inclusion therein and (y) in the Derived
Materials other than a misstatement or omission arising from a misstatement or
omission in the Seller-Provided Information, and shall reimburse the Depositor
and any such director, officer or
18
controlling person for any legal or other expenses reasonably incurred by the
Depositor or any director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which the
Underwriters may otherwise have to the Depositor or any such director, officer
or controlling person.
C. Promptly after receipt by any indemnified party under this Section
VIII of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
any indemnifying party under this Section VIII, notify the indemnifying party
in writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section VIII except to the extent it
has been materially prejudiced by such failure and, provided, further, that
the failure to notify any indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section VIII.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section VIII for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if
such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of attorneys
(in addition to local counsel) at any time for all such indemnified parties,
which firm shall be designated in writing by the Underwriters, if the
indemnified parties under this Section VIII consist of the Underwriters or any
of their respective controlling persons, or by the Depositor, if the
indemnified parties under this Section VIII consist of the Depositor or any of
the Depositor's directors, officers or controlling persons.
19
Each indemnified party, as a condition of the indemnity agreements
contained in Section VIII(A) and (B) above, shall use its best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be
a final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against
any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement.
D. Each Underwriter agrees to provide the Depositor no later than two
Business Days prior to which the Prospectus Supplement is required to be filed
pursuant to Rule 424 with a copy of its Derived Information for filing with
the Commission on Form 8-K.
E. Each Underwriter agrees, severally and not jointly, assuming all
Seller-Provided Information (as defined below) is accurate and complete in all
material respects, to indemnify and hold harmless the Depositor, each of the
Depositor's officers and directors and each person who controls the Depositor
within the meaning of Section 15 of the Securities Act against any and all
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement of a material fact contained in the
Derived Information provided by any Underwriter, 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, in
the light of the circumstances under which they were made, not misleading, and
agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by him, her or it in connection with
investigating or defending or preparing to defend any such loss, claim,
damage, liability or action as such expenses are incurred. The obligations of
the Underwriters under this Section VIII(E) shall be in addition to any
liability which the Underwriters may otherwise have.
The procedures set forth in Section VIII(C) shall be equally
applicable to this Section VIII(E).
F. If the indemnification provided for in this Section VIII shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section VIII(A), (B) or (E) above in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be 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 Class A Notes or (ii) if the allocation
provided
20
by clause (i) above is not permitted by applicable law or if the indemnified
party failed to give the notice required under Section VIII(C) above, 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 with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations.
The relative benefits of the Underwriters and the Depositor shall be
deemed to be in such proportions that each Underwriter is responsible for its
pro rata portion of such losses, liabilities, claims, damages and expenses
determined in accordance with the ratio that the excess of the aggregate
resale price received by such Underwriter for the Class A Notes over the
purchase price paid to the Depositor by such Underwriter (before deducting
expenses) bears to the aggregate resale price received by such Underwriter for
the Class A Notes, and the Depositor shall be responsible for the balance.
The relative fault of the Underwriters and the Depositor shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Depositor or by the Underwriters, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission and other
equitable considerations.
The Depositor and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section VIII(F) were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section VIII(F) shall be deemed to include, for purposes of this Section
VIII(F), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
In no case shall the Underwriters be responsible for any amount in
excess of the difference between the purchase price paid to the Depositor by
the Underwriters and the aggregate resale price received by the Underwriters.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
G. For purposes of this Section VIII, the term "Derived Information"
means such portion, if any, of the information delivered to the Depositor
pursuant to Section VIII(D) for filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference;
(ii) does not constitute Seller-Provided Information; and
(iii) is of the type of information defined as Collateral term
sheets, Structural term sheets or Computational Materials (as such
terms are interpreted in the No-Action Letters (as defined below)).
21
"Seller-Provided Information" means the information contained on any computer
tape furnished to the Underwriters by [seller] concerning the assets
comprising the Trust.
The terms "Collateral term sheet" and "Structural term sheet" shall
have the respective meanings assigned to them in the February 13, 1995 letter
(the "PSA Letter") of Cleary, Gottlieb, Xxxxx & Xxxxxxxx on behalf of the
Public Securities Association (which letter, and the SEC staff's response
thereto, were publicly available February 17, 1995). The term "Collateral term
sheet" as used herein includes any subsequent Collateral term sheet that
reflects a substantive change in the information presented. The term
"Computational Materials" has the meaning assigned to it in the May 17, 1994
letter (the "Xxxxxx letter" and together with the PSA Letter, the "No-Action
Letters") of Xxxxx & Xxxx on behalf of Xxxxxx, Peabody & Co., Inc. (which
letter, and the SEC staff's response thereto, were publicly available May 20,
1994).
H. The Underwriters confirm that the information set forth (i) in the
third, fourth, fifth, sixth, seventh and last paragraphs under the caption
"Underwriting" in the Prospectus Supplement and (ii) the Derived Information
is correct and constitutes the only information furnished in writing to the
Depositor by or on behalf of the Underwriters specifically for inclusion in
the Registration Statement and the Prospectus.
Section IX. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Depositor submitted
pursuant hereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or
controlling persons thereof, or by or on behalf of the Depositor and shall
survive delivery of any Class A Notes to the Underwriters.
Section X. Default by One of the Underwriters. If one of the
Underwriters participating in the public offering of the Class A Notes shall
fail at the Closing Date to purchase the Class A Notes which it is obligated
to purchase hereunder (the "Defaulted Notes"), then the non-defaulting
Underwriter shall have the right, within 24 hours thereafter, to purchase all,
but not less than all, of the Defaulted Notes in such amounts as may be agreed
upon and upon the terms herein set forth. If, however, the non-defaulting
Underwriters have not completed such arrangements within such 24-hour period,
then:
(i) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of the Class Notes to be
purchased pursuant to this Agreement, the non-defaulting Underwriters
shall be obligated to purchase the full amount thereof, or
(ii) if the aggregate principal amount of Defaulted Notes exceeds
10% of the aggregate principal amount of the Notes to be purchased
pursuant to this Agreement, this Agreement shall terminate, without
any liability on the part of the non-defaulting Underwriters.
No action taken pursuant to this Section X shall relieve a defaulting
Underwriter from liability with respect to any default of such Underwriter
under this Agreement.
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In the event of a default by any Underwriter as set forth in this
Section X, each of the non-defaulting Underwriters and the Depositor shall
have the right to postpone the Closing Date for a period not exceeding five
Business Days in order that any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements may be effected.
Section XI. Termination of Agreement. The Underwriters may terminate
this Agreement immediately upon notice to the Depositor, at any time at or
prior to the Closing Date, if any of the events or conditions described in
Section VI(S) of this Agreement shall occur and be continuing. In the event of
any such termination, the covenant set forth in Section V(D), the provisions
of Section VII, the indemnity agreement set forth in Section VIII, and the
provisions of Sections IX and XIII herein shall remain in effect.
Section XII. Notices. All statements, requests, notices and
agreements hereunder shall be in writing, and:
A. if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to [ ].
B. if to the Depositor, shall be delivered or sent by mail,
telex or facsimile transmission to [ ].
Section XIII. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters
and the Depositor, and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that the representations, warranties, indemnities and agreements
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control the Underwriters within the meaning of
Section 15 of the Securities Act, and for the benefit of directors of the
Depositor, officers of the Depositor who have signed the Registration
Statement and any person controlling the Depositor within the meaning of
Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section XIII, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
Section XIV. Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on behalf of them, respectively, pursuant to
this Agreement, shall survive the delivery of and payment for the Class A
Notes and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling
any of them.
Section XV. Definition of the Term "Business Day". For purposes of
this Agreement, "Business Day" means any day on which the New York Stock
Exchange, Inc. is open for trading.
Section XVI. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
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Section XVII. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
Section XVIII. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between the
Depositor and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
BOND SECURITIZATION, L.L.C.
By: ____________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[Underwriter]
By: ___________________________
Name:
Title:
25
SCHEDULE A
Initial Principal Amount of Notes
Purchased by Underwriters
Underwriter Class A
--------------------------------------- ------------------
Purchase Price for Class A Notes - [ ]% plus accrued interest from [ ] to but
not including the Closing Date.
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