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EXHIBIT 1.1
HOMESIDE MORTGAGE SECURITIES, INC.
PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
[DATE]
[Underwriter]
[Address]
Ladies and Gentlemen:
HomeSide Mortgage Securities, Inc. (the "Company"), a Delaware
corporation, has authorized the issuance and sale of Pass-Through Certificates
(the "Certificates") evidencing interests in pools of mortgage loans (the
"Mortgage Loans"). The Certificates may be issued in various series, and, within
each series, in one or more classes, and, within each class, in one or more
sub-classes, in one or more offerings on terms determined at the time of sale
(each such series, a "Series" and each such class, a "Class"). Each Series of
the Certificates will be issued under a separate Pooling and Servicing Agreement
(each, a "Pooling and Servicing Agreement") with respect to such Series among
the Company, as depositor, a servicer to be identified in the prospectus
supplement for each such Series (the "Servicer") and a trustee to be identified
in the prospectus supplement for each such Series (the "Trustee"). The
Certificates of each Series will evidence specified interests in separate pools
of Mortgage Loans (each a "Mortgage Pool"), and certain other property held in
trust with respect to such Series (each, a "Trust Fund").
The Certificates are more fully described in a Registration Statement
which the Company has furnished to you. Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement. The term "you" as used herein, unless the context otherwise requires,
shall mean you and such persons as are named as co-managers in the applicable
Terms Agreement (defined below).
Whenever the Company determines to make an offering of Certificates
pursuant to this Agreement through you or through an underwriting syndicate
managed by you it will enter into an agreement (the "Terms Agreement") providing
for the sale of such Certificates to, and the purchase and offering thereof by,
you and such other underwriters, if any, selected by you as have authorized you
to enter into such Terms Agreement on their behalf (the "Underwriters,"
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which term shall include you whether acting alone in the sale of Certificates or
as a member of an underwriting syndicate. The Terms Agreement relating to each
offering of Certificates shall specify, among other things, the stated balance
or balances of Certificates to be issued, the price or prices at which the
Certificates are to be purchased by the Underwriters from the Company and the
initial public offering price or prices or the method by which the price or
prices at which such Certificates are to be sold will be determined. A Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written telecommunication
between you and the Company. Each such offering of Certificates which the
Company elects to make pursuant to this Agreement 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
Underwriters participating in the offering of such Certificates.
SECTION 1. Representations and Warranties. (a) The Company represents
and warrants to you as of the date hereof, and to the Underwriters named in the
applicable Terms Agreement, all as of the date of such Terms Agreement (in each
case, the "Representation Date"), as follows (any representations and warranties
so made to the Underwriters named in an applicable Terms Agreement respecting
the Certificates being deemed to relate only to the Certificates described
therein):
(1) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3
(No. 333-_____), relating to the offering of Certificates from time
to time in accordance with Rule 415 under the Securities Act of 1933,
as amended (the "1933 Act"), and has filed, and proposes to file,
such amendments thereto as may have been required to the date hereof
and the same has become effective under the 1933 Act and the rules of
the Commission thereunder (the "Regulations") and no stop order
suspending the effectiveness of such registration statement has been
issued and no proceedings for that purpose have been initiated or, to
the Company's knowledge, threatened, by the Commission. Such
registration statement, including incorporated documents, exhibits
and financial statements, as amended at the time when it became
effective under the 1933 Act, and the prospectus relating to the sale
of Certificates by the Company constituting a part thereof, as from
time to time each is amended or supplemented pursuant to the 1933 Act
or otherwise, are referred to herein as the "Registration Statement"
and the "Prospectus," respectively; provided, however, that a
supplement to the Prospectus contemplated by Section 3(a) hereof (a
"Prospectus Supplement") shall be deemed to have supplemented the
Prospectus only with respect to the offering or offerings of
Certificates to which it relates. Any reference herein to the
Registration Statement, a preliminary prospectus, the Prospectus or
the Prospectus Supplement shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of 1934,
as amended (the "1934 Act") on or before the date on which the
Registration Statement, as amended, became effective or the issue
date of such preliminary prospectus, Prospectus, or Prospectus
Supplement, as the case may be; and
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any reference herein to the terms "amend," "amendment" or supplement
with respect to the Registration Statement, any preliminary
prospectus, the Prospectus or the Prospectus Supplement shall be
deemed to refer to and include the filing of any document under the
1934 Act after the date on which the Registration Statement became
effective or the issue date of any preliminary prospectus, the
Prospectus or the Prospectus Supplement, as the case may be, deemed
to be incorporated therein by reference. The Registration Statement
and Prospectus, at the time the Registration Statement became
effective did, and as of the applicable Representation Date will,
conform in all material respects to the requirements of the 1933 Act
and the Regulations. The Registration Statement, at the time it
became effective did not, and as of the applicable Representation
Date and the applicable Closing Time (as defined in Section 2 hereof)
will not, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus, as
amended or supplemented as of the applicable Representation Date and
the applicable Closing Time (as defined in Section 2 hereof), 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, however, that the representations and
warranties in this subsection shall not apply to (i) statements in,
or omissions from, the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by the Underwriters expressly for use in the
Registration Statement or Prospectus or (ii) the [Underwriter]
Information (as defined in Section 10 hereof). The conditions to the
use by the Company of a registration statement on Form S-3 under the
1933 Act, as set forth in the General Instructions to Form S-3, have
been satisfied with respect to the Registration Statement and the
Prospectus. There are no contracts or documents of the Company which
are required to be described in the Registration Statement or
Prospectus or filed as exhibits to the Registration Statement
pursuant to the 1933 Act or the Regulations which have not been so
described or filed.
(2) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware with corporate power and authority to enter into
and perform its obligations under this Agreement, the applicable
Pooling and Servicing Agreement, and with respect to a Series of
Certificates, the Certificates and the applicable Terms Agreement;
and the Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which the ownership or lease of its properties or the
conduct of its business requires such qualification.
(3) The Company is not in violation of its certificate of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any material contract, indenture, mortgage,
loan agreement, note, lease or other material instrument to which it
is a party or by which it or its properties may be bound, which
default might result in any material adverse
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change in the financial condition, earnings, affairs or business of
the Company or which might materially and adversely affect the
properties or assets thereof or the Company's ability to perform its
obligations under this Agreement, the applicable Terms Agreement or
the applicable Pooling and Servicing Agreement.
(4) The execution and delivery by the Company of this
Agreement, the applicable Terms Agreement and the applicable Pooling
and Servicing Agreement and the signing of the Registration Statement
by the Company are within the corporate power of the Company and have
been duly authorized by all necessary corporate action on the part of
the Company; and with respect to a Series of Certificates described
in the applicable Terms Agreement, neither the issuance and sale of
the Certificates to the Underwriters, nor the execution and delivery
by the Company of this Agreement, such Terms Agreement and the
related Pooling and Servicing Agreement, nor the consummation by the
Company of the transactions herein or therein contemplated, nor
compliance by the Company with the provisions hereof or thereof, will
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company other than as contemplated by a
Pooling and Servicing Agreement, pursuant to any material indenture,
mortgage, contract or other material instrument to which the Company
is a party or by which it is bound or to which the property or assets
of the Company are subject, or result in the violation of the
provisions of the certificate of incorporation or by-laws of the
Company or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company
or any of its properties.
(5) This Agreement has been, and each applicable Terms
Agreement when executed and delivered as contemplated hereby and
thereby will have been, duly authorized, executed and delivered by
the Company, and each constitutes, or will constitute when so
executed and delivered, a legal, valid and binding instrument
enforceable against the Company in accordance with its terms
(assuming due authorization, execution and delivery by the other
parties thereto), subject (a) to applicable bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting
creditors' rights generally, (b) as to enforceability to general
principles of equity (regardless of whether enforcement is sought in
a proceeding in equity or at law) and (c) as to enforceability with
respect to rights of indemnity thereunder, to limitations of public
policy under applicable securities laws.
(6) Each applicable Pooling and Servicing Agreement when
executed and delivered as contemplated hereby and thereby will have
been duly authorized, executed and delivered by the Company, and will
constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (assuming due authorization, execution and delivery by the
other parties thereto), subject (a) to applicable bankruptcy,
insolvency, reorganization, moratorium or
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other similar laws affecting creditors' rights generally and (b) as
to enforceability to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law);
and as of the Closing Date, the representations and warranties made
by the Company in the applicable Pooling and Servicing Agreement will
be true and correct as of the date made.
(7) As of the Closing Time (as defined in Section 2 hereof)
with respect to a Series of Certificates, the Certificates will have
been duly and validly authorized by the Company, and, when executed
and authenticated as specified in the related Pooling and Servicing
Agreement, will be validly issued and outstanding and will be
entitled to the benefits of the related Pooling and Servicing
Agreement, and the Classes of Certificates so designated in the
related Prospectus Supplement will be "mortgage related securities,"
as defined in Section 3(a)(41) of the ▇▇▇▇ ▇▇▇.
(8) There are no actions, proceedings or investigations now
pending against the Company or, to the knowledge of the Company,
threatened against the Company, before any court, administrative
agency or other tribunal (i) asserting the invalidity of this
Agreement, the applicable Terms Agreement, the applicable Pooling and
Servicing Agreement or with respect to a Series of Certificates, the
Certificates, (ii) seeking to prevent the issuance of such
Certificates or the consummation of any of the transactions
contemplated by this Agreement, the applicable Terms Agreement or
such Pooling and Servicing Agreement, (iii) which would be likely to
materially and adversely affect the performance by the Company of its
obligations under, or which would if adversely determined materially
and adversely affect the validity or enforceability of, this
Agreement, the applicable Terms Agreement, such Pooling and Servicing
Agreement or such Certificates or (iv) seeking to adversely affect
the federal income tax attributes of such Certificates described in
the Prospectus and the related Prospectus Supplement.
(9) Any taxes, fees and other governmental charges that are
assessed and due in connection with the execution, delivery and
issuance of this Agreement, the applicable Terms Agreement, the
applicable Pooling and Servicing Agreement and with respect to a
Series of Certificates shall have been paid at or prior to the
Closing Time.
(10) No filing or registration with, notice to or consent,
approval, authorization, order or qualification of or with any court
or governmental agency or body is required for the issuance and sale
of the Certificates or the consummation by the Company of the
transactions contemplated by this Agreement, the applicable Pooling
and Servicing Agreement or the applicable Terms Agreement, except the
registration under the 1933 Act of the Certificates, and 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 Certificates by
the Underwriters.
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(11) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies deemed by the
Company to be reasonably necessary to conduct the business now
operated by it and as described in the Prospectus and the Company has
received no notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect
the conduct of the business, operations, financial condition or
income of the Company.
(12) No litigation is pending or, to the best of the
Company's knowledge, threatened, against the Company which would
prohibit the Company's entering into this Agreement or the applicable
Pooling and Servicing Agreement.
(13) As of the Closing Time, with respect to a Series of
Certificates described in the relevant Terms Agreement evidencing
interests in a Mortgage Pool, the Trustee will have either good and
marketable title, free and clear of all prior liens, charges,
pledges, mortgages, security interests and encumbrances, to or a
validly perfected first priority security interest in the Mortgage
Notes and the related Mortgages included in the Trust Fund, with
respect to (a) the Mortgage Notes, upon delivery thereof to the
Trustee and (b) the Mortgages, upon delivery to the Trustee of
instruments of assignment in recordable form assigning each Mortgage
to the Trustee and the recording of each such instrument of
assignment in the appropriate recording office in which the Mortgaged
Property is located, or if supported by an opinion of counsel,
without recording.
(14) As of the Closing Time, with respect to a Series of
Certificates as to which there is a Reserve Fund, to the extent that
the Reserve Fund does not constitute part of the Trust Fund for such
Series, the Trustee will have acquired either good and marketable
title to or a duly and validly perfected security interest in the
Reserve Fund with respect to such Series, if any, subject to no prior
lien, mortgage, security interest, pledge, charge or other
encumbrance.
(15) As of the Closing Time, with respect to a Series of
Certificates, the Mortgage Pool will have substantially the
characteristics described in the Prospectus Supplement and in the
Form 8-K of the Company prepared with respect to such Certificates,
if the Mortgage Pool is described in such Form 8-K.
(16) Neither the Company nor the Trust Fund created by the
applicable Pooling and Servicing Agreement will be subject to
registration as an "investment company" under the Investment Company
Act of 1940, as amended (the "1940 Act").
(17) The Certificates, the applicable Pooling and
Servicing Agreement, the applicable Terms Agreement and any Primary
Insurance Policies, Mortgage Pool Insurance Policies, Standard Hazard
Insurance Policies, Special Hazard Insurance
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Policies, Mortgagor Bankruptcy Insurance and Alternate Credit
Enhancement related to the Certificates described in the relevant
Terms Agreement conform in all material respects to the descriptions
thereof contained in the Prospectus.
(18) As of the Closing Time, the Mortgage Loans will have
been duly and validly assigned and delivered by the Company to the
Trustee under the related Pooling and Servicing Agreement.
(19) As of the Closing Time, the representations and
warranties of the Company contained in the applicable Pooling and
Servicing Agreement are true and correct in all material respects.
(b) HomeSide Lending, Inc. ("HomeSide") represents and warrants to
you as of the date hereof, and to the Underwriters named in the applicable Terms
Agreement, all as of the date of such Terms Agreement (in each case, the
"Representation Date"), as follows (any representations and warranties so made
to the Underwriters named in an applicable Terms Agreement respecting the
Certificates being deemed to relate only to the Certificates described therein):
(1) HomeSide has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Florida with corporate power and authority to enter into and
perform its obligations under this Agreement, the applicable Pooling
and Servicing Agreement, and with respect to a Series of
Certificates, the applicable Terms Agreement; and HomeSide is duly
qualified or registered as a foreign corporation to transact business
and is in good standing in each jurisdiction in which the ownership
or lease of its properties or the conduct of its business requires
such qualification.
(2) HomeSide is not in violation of its certificate of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any material contract, indenture, mortgage,
loan agreement, note, lease or other material instrument to which it
is a party or by which it or its properties may be bound, which
default might result in any material adverse change in the financial
condition, earnings, affairs or business of HomeSide or which might
materially and adversely affect the properties or assets thereof or
HomeSide's ability to perform its obligations under this Agreement,
the applicable Terms Agreement or the applicable Pooling and
Servicing Agreement.
(3) The execution and delivery by HomeSide of this
Agreement, the applicable Terms Agreement and the applicable Pooling
and Servicing Agreement are within the corporate power of HomeSide
and have been duly authorized by all necessary corporate action on
the part of HomeSide; and with respect to a Series of Certificates
described in the applicable Terms Agreement, neither the execution
and delivery by
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HomeSide of this Agreement, such Terms Agreement and the related
Pooling and Servicing Agreement, nor the consummation by HomeSide of
the transactions herein or therein contemplated, nor compliance by
HomeSide with the provisions hereof or thereof, will conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of HomeSide other than as contemplated by a Pooling and
Servicing Agreement, pursuant to any material indenture, mortgage,
contract or other material instrument to which HomeSide is a party or
by which it is bound or to which the property or assets of HomeSide
are subject, or result in the violation of the provisions of the
certificate of incorporation or by-laws of HomeSide or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over HomeSide or any of its properties.
(4) This Agreement has been, and each applicable Terms
Agreement when executed and delivered as contemplated hereby and
thereby will have been, duly authorized, executed and delivered by
HomeSide, and each constitutes, or will constitute when so executed
and delivered, a legal, valid and binding instrument enforceable
against HomeSide in accordance with its terms (assuming due
authorization, execution and delivery by the other parties thereto),
subject (a) to applicable bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting creditors' rights
generally, (b) as to enforceability to general principles of equity
(regardless of whether enforcement is sought in a proceeding in
equity or at law) and (c) as to enforceability with respect to rights
of indemnity thereunder, to limitations of public policy under
applicable securities laws.
(5) Each applicable Pooling and Servicing Agreement when
executed and delivered as contemplated hereby and thereby will have
been duly authorized, executed and delivered by HomeSide, and will
constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against HomeSide in accordance with its terms
(assuming due authorization, execution and delivery by the other
parties thereto), subject (a) to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and (b) as to enforceability to general principles
of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law); and as of the Closing Date, the
representations and warranties made by HomeSide in the applicable
Pooling and Servicing Agreement will be true and correct as of the
date made.
(6) There are no actions, proceedings or investigations now
pending against HomeSide or, to the knowledge of HomeSide, threatened
against HomeSide, before any court, administrative agency or other
tribunal (i) asserting the invalidity of this Agreement, the
applicable Terms Agreement or the applicable Pooling and Servicing
Agreement, (ii) seeking to prevent the issuance of such Certificates
or the consummation of any of the transactions contemplated by this
Agreement, the applicable Terms
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Agreement or such Pooling and Servicing Agreement, (iii) which would
be likely to materially and adversely affect the performance by
HomeSide of its obligations under, or which would if adversely
determined materially and adversely affect the validity or
enforceability of, this Agreement, the applicable Terms Agreement,
such Pooling and Servicing Agreement or such Certificates or (iv)
seeking to adversely affect the federal income tax attributes of such
Certificates described in the Prospectus and the related Prospectus
Supplement.
SECTION 2. Purchase and Sale. The commitment of each Underwriter to
purchase Certificates pursuant to any Terms Agreement shall be several and not
joint and shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
Payment of the purchase price for, and delivery of, any Certificates
to be purchased by the Underwriters shall be made at the offices of ▇▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, New York, New York, or at such other place as shall be
agreed upon by you and the Company, at such time or date as shall be agreed upon
by you and the Company in the Terms Agreement (each such time and date being
referred to as a "Closing Time"). Unless otherwise specified in the applicable
Terms Agreement, payment shall be made to the Company in immediately available
Federal funds wired to such bank as may be designated by the Company. Such
Certificates shall be in such denominations and registered in such names as you
may request in writing at least two business days prior to the applicable
Closing Time. Such Certificates will be made available for examination and
packaging by you no later than 12:00 noon on the first business day prior to the
applicable Closing Time.
It is understood that the Underwriters intend to offer the
Certificates for sale to the public as set forth in the Prospectus Supplement.
SECTION 3. Covenants of the Company. The Company covenants with each
of you and each Underwriter participating in an offering of Certificates
pursuant to a Terms Agreement, with respect to such Certificates and such
offering, as follows:
(a) Immediately following the execution of each Terms
Agreement, the Company will prepare a Prospectus Supplement setting
forth the principal amount of Certificates covered thereby, the price
or prices at which the Certificates are to be purchased by the
Underwriters, either the initial public offering price or prices or
the method by which the price or prices by which the Certificates are
to be sold will be determined, the selling concession(s) and
reallowance(s), if any, any delayed delivery arrangements, and such
other information as you and the Company deem appropriate in
connection with the offering of the Certificates. The Company will
furnish you a copy of the Prospectus Supplement for your review prior
to filing such Prospectus Supplement with the Commission. Thereafter,
the Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 under
the 1933
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Act and will furnish to the Underwriters as many copies of the
Prospectus and such Prospectus Supplement as you shall reasonably
request.
(b) If the delivery of a prospectus is required at any time
in connection with the offering or sale of the Certificates described
in the relevant Terms Agreement and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an 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 period of
time to amend or supplement the Prospectus in order to comply with
the 1933 Act, the Company agrees to notify you promptly and upon your
request so to amend or supplement the Prospectus and to prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance.
(c) During any period in which the delivery of a prospectus
is required at any time in connection with the offering or sale of
the Certificates described in the relevant Terms Agreement the
Company will give you reasonable notice of its intention to file any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act or
otherwise, and will furnish you with copies of any such amendment or
supplement or other documents proposed to be filed a reasonable time
in advance of filing.
(d) During any period in which the delivery of a prospectus
is required at any time in connection with the offering or sale of
the Certificates described in the relevant Terms Agreement the
Company will notify you promptly (i) of the effectiveness of any
amendment to the Registration Statement, (ii) of the mailing or the
delivery to the Commission for filing of any supplement to the
Prospectus or any document other than quarterly and annual reports to
be filed pursuant to the 1934 Act, (iii) of the receipt of any
comments from the Commission with respect to the Registration
Statement, the Prospectus or any Prospectus Supplement, (iv) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Certificates for sale in any jurisdiction or the threat of any
proceeding for that purpose and (vi) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if any stop order is issued, to
obtain the lifting thereof as soon as possible.
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(e) The Company agrees, so long as the Certificates shall
be outstanding, or until such time as you shall cease to maintain a
secondary market in the Certificates, whichever first occurs, to
deliver to you the annual statement as to compliance delivered to the
Trustee pursuant to Section 5.25 of the applicable Pooling and
Servicing Agreement and the annual statement of a firm of independent
public accountants furnished to the Trustee pursuant to Section 5.26
of the applicable Pooling and Servicing Agreement, as soon as such
statements are furnished to the Company.
(f) The Company will deliver to you as many conformed
copies of the Registration Statement (as originally filed) and of
each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by
reference in the Prospectus) as you may reasonably request.
(g) The Company will endeavor, in cooperation with you, to
qualify the Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United
States as you may designate, and will maintain or cause to be
maintained such qualifications in effect for as long as may be
required for the distribution of the Certificates, provided that in
connection therewith the Company shall not be required to qualify as
a foreign corporation or to file a general consent to service of
process in any jurisdiction. The Company will file or cause the
filing of such statements and reports as may be required by the laws
of each jurisdiction in which the Certificates have been qualified as
above provided.
SECTION 4. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase Certificates pursuant to any Terms Agreement
shall be subject to the accuracy of the representations and warranties on the
part of the Company herein contained, to the accuracy of the statements of the
Company's officers made pursuant hereto, to the performance by the Company of
all of its obligations hereunder and to the following additional conditions
precedent:
(a) At the applicable Closing Time (i) no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
initiated or threatened by the Commission and the Prospectus
Supplement shall have been filed or transmitted for filing by means
reasonably calculated to result in filing with the Commission not
later than the time required by Rule 424(b) under the 1933 Act, (ii)
the Certificates shall have received the rating or ratings specified
in the applicable Terms Agreement, and (iii) there shall not have
come to your attention any facts that would cause you to believe that
the Prospectus, together with the applicable Prospectus Supplement at
the time it was required to be delivered to a purchaser of the
Certificates, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at such
time, not misleading. No challenge by the Commission shall have been
made to the accuracy or adequacy of the Registration
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Statement and any request of the Commission for inclusion of
additional information in the Registration Statement or the
Prospectus or the Prospectus Supplement shall have been complied with
and the Company shall not have filed with the Commission any
amendment or supplement to the Registration Statement, the Prospectus
or the Prospectus Supplement without the consent of the Underwriters.
(b) At the applicable Closing Time you shall have received:
(1) The opinion, dated as of the applicable
Closing Time, of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the
Company, in form and substance satisfactory to such of you as may be
named in the applicable Terms Agreement, to the effect that:
(i) The Company is validly existing as a
corporation in good standing under the laws of the State of
Delaware.
(ii) This Agreement and the applicable Terms
Agreement have been duly authorized, executed and delivered
by the Company, and each is a valid and binding obligation
of the Company enforceable against the Company in
accordance with its terms, except that (A) such enforcement
may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (B) the remedy of
specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and
to the discretion of the court before which any proceeding
therefor may be brought, and (C) the enforceability as to
rights to indemnity thereunder may be subject to
limitations of public policy under applicable securities
laws.
(iii) The applicable Pooling and Servicing
Agreement has been duly authorized, executed and delivered
by the Company, and is a legal, valid and binding
obligation of the Company enforceable against the Company
in accordance with its terms, except that (A) such
enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors'
rights generally and (B) the remedy of specific performance
and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
(iv) The execution and delivery by the Company of
this Agreement, the applicable Terms Agreement and
applicable Pooling and Servicing Agreement and the signing
of the Registration Statement by the Company are within the
corporate power of the Company and have been duly
authorized by all necessary corporate action on the part of
the Company; and neither the issue and sale of the
Certificates nor the consummation of the transactions
contemplated herein or
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therein nor the fulfillment of the terms hereof or thereof
will, conflict with or constitute a breach or violation of
any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company pursuant to, any contract, indenture, mortgage, or
other instrument to which the Company is a party or by
which it may be bound of which such counsel is aware, other
than the lien or liens created by the applicable Pooling
and Servicing Agreement, nor will such action result in any
violation of the provisions of the certificate of
incorporation or by-laws of the Company or, any statute,
rule or regulation to which the Company is subject or by
which it is bound or any writ, injunction or decree of any
court, governmental authority or regulatory body to which
it is subject or by which it is bound of which such counsel
is aware.
(v) The Certificates have been duly authorized
and, when executed and authenticated as specified in the
related Pooling and Servicing Agreement and delivered and
paid for, will be validly issued, fully paid, nonassessable
and entitled to the benefits of the related Pooling and
Servicing Agreement.
(vi) Assuming strict compliance by the
Underwriters with the provisions of this Agreement, no
filing or registration with or notice to or consent,
approval, authorization, order or qualification of or with
any court or governmental agency or body is required for
the issuance and sale of the Certificates or the
consummation by the Company of the transactions
contemplated by this Agreement, the applicable Pooling and
Servicing Agreement or the applicable Terms Agreement,
except the registration under the 1933 Act of the
Certificates, and 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 Certificates by the
Underwriters.
(vii) Other than as may be set forth or
contemplated in the Prospectus, there is no action, suit or
proceeding of which such counsel is aware before or by any
court or governmental agency or body, domestic or foreign,
now pending or, to the best of such counsel's knowledge,
threatened against the Company which might result in any
material adverse change in the financial condition,
earnings, affairs or business of the Company, or which
might materially and adversely affect the properties or
assets thereof or might materially and adversely affect the
performance by the Company of its obligations under, or the
validity or enforceability of, the Certificates, this
Agreement or the Pooling and Servicing Agreement, or which
is required to be disclosed in the Registration Statement.
(viii) The Registration Statement is effective
under the 1933 Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness
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of the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or threatened by
the Commission.
(ix) The applicable Pooling and Servicing
Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended.
(x) The Registration Statement and the Prospectus
(other than the financial statements and other financial
and statistical information included therein, as to which
no opinion need be rendered) as of their respective
effective or issue dates, complied as to form in all
material respects with the requirements of the 1933 Act and
the Regulations thereunder.
(xi) (A) The statements in the Prospectus under
the headings "ERISA Considerations" and "Federal Income Tax
Consequences" and the statements in the applicable
Prospectus Supplement under the headings "Federal Income
Tax Considerations" and "ERISA Considerations", to the
extent that they describe matters of United States federal
income tax law or ERISA or legal conclusions with respect
thereto, have been prepared or reviewed by such counsel and
are accurate in all material respects and (B) the
statements in the Prospectus under the heading "Certain
Legal Aspects of the Mortgage Loans," to the extent they
constitute matters of United States federal law or legal
conclusions with respect thereto, while not purporting to
discuss all possible consequences of investment in the
Certificates, are accurate in all material respects with
respect to those consequences or matters discussed therein.
(xii) The statements in the Prospectus and the
applicable Prospectus Supplement under the caption
"Description of the Certificates", insofar as they purport
to summarize certain terms of the Certificates and the
applicable Pooling and Servicing Agreement, constitute a
fair summary of the provisions purported to be summarized.
(xiii) The Trust Fund created by the applicable
Pooling and Servicing Agreement is not, and will not as a
result of the offer and sale of the Certificates as
contemplated in the Prospectus and in this Agreement
become, an "investment company" required to be registered
under the 1940 Act.
(xiv) The Classes of Certificates so designated
in the Prospectus Supplement will be "mortgage related
securities", as defined in Section 3(a)(41) of the 1934
Act, so long as the Certificates are rated in one of the
two highest grades by at least one nationally recognized
statistical rating organization.
(xv) If a REMIC election is to be made with
respect to the Trust Fund, assuming (a) ongoing compliance
with all of the provisions of the Pooling and
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Servicing Agreement and (b) the filing of an election, in
accordance with the Pooling and Servicing Agreement, to be
treated as a "real estate mortgage investment conduit" (a
"REMIC") pursuant to Section 860D of the Internal Revenue
Code of 1986, as amended (the "Code") for Federal income
tax purposes, the Trust Fund will qualify as a REMIC as of
the Closing Date and will continue to qualify as a REMIC
for so long as it complies with amendments after the date
hereof to any applicable provisions of the Code and
applicable Treasury Regulations.
(xvi) Assuming that the Trust Fund is treated as
a REMIC for Federal income tax purposes, it will not be
subject as an entity to any tax imposed on income,
franchises or capital stock by Chapter 60 of the
Consolidated Laws of New York.
Such counsel shall deliver to you such additional opinions addressing
the transfer by the Company to the Trustee of its right, title and interest in
and to the Mortgage Loans and other property included in the Trust Fund at the
Closing Time as may be required by each Rating Agency rating the Certificates.
Such counsel shall state that it has participated in conferences with
officers and other representatives of the Company, your counsel, representatives
of the independent accountants for the Company and you at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xi) and (xii) above) and has made no independent check or
verification thereof for the purpose of rendering its opinion, on the basis of
the foregoing, nothing has come to their attention that leads such counsel to
believe that either the Registration Statement, at the time it became effective
and at the applicable Closing Time, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or that the Prospectus
contained or contains as of the date thereof and at the applicable Closing Time
any untrue statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that such counsel need
express no view with respect to the financial statements, schedules and other
financial and statistical data included in or incorporated by reference into the
Registration Statement, the Prospectus or the Prospectus Supplement.
Such counsel may state that their opinions relate only to laws of the
State of New York, the Federal laws of the United States and the General
Corporation Law of the State of Delaware.
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In rendering such opinions, such counsel may rely, as to matters of
fact, to the extent deemed proper and stated therein, on certificates of
responsible officers of the Company, the Trustee or public officials.
(2) The favorable opinion of counsel to the
Trustee, dated as of the applicable Closing Time, addressed
to you and in form and scope satisfactory to your counsel,
to the effect that:
(i) The Trustee is a __________, duly
organized and validly existing in good standing under the
laws of the __________, and has all requisite power and
authority to enter into the Pooling and Servicing Agreement
and to perform its obligations thereunder.
(ii) To the knowledge of such counsel, there
is no action, suit, proceeding or investigation pending or
threatened against the Trustee that could materially
adversely affect the ability of the Trustee to perform its
obligations under the Pooling and Servicing Agreement.
(iii) The Trustee has duly authorized,
executed and delivered the applicable Pooling and
Servicing Agreement and such Pooling and Servicing
Agreement will constitute the legal, valid and binding
obligation of the Trustee.
(iv) The Trustee has full power and authority
to execute and deliver the applicable Pooling and
Servicing Agreement and to perform its obligations
thereunder.
(v) No consent, approval or authorization of,
or registration, declaration or filing with, any court or
governmental agency or body of the jurisdiction of its
organization is required for the execution, delivery or
performance by the Trustee of the Pooling and Servicing
Agreement.
(vi) The Certificates have been duly and
validly executed, authenticated and delivered by the
Trustee in accordance with the Pooling and Servicing
Agreement.
(vii) The performance by the Trustee of its
duties pursuant to the Pooling and Servicing Agreement
does not conflict with or result in a breach or violation
of any term or provision of, or constitute a default
under, any statute or regulation currently governing the
Trustee.
In rendering such opinion, such counsel may rely, as to
matters of fact, to the extent deemed proper and stated therein, on certificates
of responsible officers of the Trustee or public officials.
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(3) The favorable opinion of counsel to the Servicer,
dated as of the applicable Closing Time, addressed to you and in form
and scope satisfactory to your counsel, to the effect that:
(i) The Servicer is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation.
(ii) The execution and delivery by the Servicer of
this Agreement and the applicable Pooling and Servicing Agreement is
within the corporate power of the Servicer and has been duly
authorized by all necessary corporate action on the part of the
Servicer; and to the knowledge of such counsel, neither the execution
and delivery of either such instrument, nor the consummation of the
transactions provided for therein, nor compliance with the provisions
thereof, will conflict with or constitute a breach of, or default
under, any contract, indenture, mortgage, loan agreement, note,
lease, deed of trust, or other instrument to which the Servicer is a
party or by which it may be bound, nor will such action result in any
violation of the provisions of the charter or by-laws of the Servicer
or to the knowledge of such counsel, any law, administrative
regulation or administrative or court decree.
(iii) This Agreement and the applicable Pooling and
Servicing Agreement have been duly executed and delivered by the
Servicer and each constitutes a legal, valid and binding obligation
of the Servicer enforceable against the Servicer in accordance with
its terms, except that such enforceability thereof may be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and subject,
as to enforceability, to general principles of equity (regardless
whether enforcement is sought in a proceeding in equity or at law).
(iv) To the knowledge of such counsel, the execution,
delivery and performance by the Servicer of this Agreement and the
applicable Pooling and Servicing Agreement do not require the consent
or approval of, the giving of notice to, the registration with, or
the taking of any other action in respect of any federal, state or
other governmental agency or authority which has not previously been
effected.
(v) To the knowledge of such counsel, there is no
action, suit or proceeding of which such counsel is aware before or
by any court or governmental agency or body, domestic or foreign, now
pending or threatened against the Servicer which might materially and
adversely affect the performance by the Servicer under, or the
validity or enforceability of, this Agreement or the applicable
Pooling and Servicing Agreement.
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(vi) The description of the Servicer in the applicable
Prospectus Supplement is true and correct in all material respects.
(4) The favorable opinion or opinions, dated as of the
applicable Closing Time, of counsel for the Underwriters, acceptable
to the Underwriters.
(c) At the applicable Closing Time you shall have received a
certificate of the President or a Vice President and the Treasurer or the
Secretary of each of the Company and HomeSide, dated as of such Closing
Time, to the effect that the representations and warranties of the Company
or HomeSide, as the case may be, contained in Section 1 are true and
correct with the same force and effect as though such Closing Time were a
Representation Date and that the Company or HomeSide, as the case may be,
has complied with all agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing Time.
(d) You shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, KPMG Peat Marwick,
or other independent certified public accountants acceptable to you,
letters, dated as of the date of the applicable Terms Agreement and as of
the applicable Closing Time, delivered at such times, in the form and
substance reasonably satisfactory to you.
(e) At the applicable Closing Time, with respect to a Series of
Certificates, each of the representations and warranties of the Servicer
set forth in the related Pooling and Servicing Agreement will be true and
correct and you shall have received a Certificate of an Executive Vice
President, Senior Vice President or Vice President of the Servicer, dated
as of such Closing Time, to such effect.
(f) At the applicable Closing Time, with respect to a Series of
Certificates, the Certificates shall have received the certificate rating
or ratings specified in the related Terms Agreement.
(g) At the applicable Closing Time, counsel for the Underwriters
shall have been furnished with such other documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Certificates 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 Company in
connection with the issuance and sale of the Certificates as herein
contemplated shall be reasonably satisfactory in form and substance to you
and counsel for the Underwriters.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled or, if any of the opinions and certificates
required hereby shall not be in all material respects reasonably satisfactory to
you and your counsel, the applicable Terms Agreement may be terminated by you by
notice to the Company at any time at or prior to the
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applicable Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. [Describe arrangement for the
payment of expenses.]
SECTION 6. Indemnification.
(a) The Company and HomeSide, jointly and severally, will
indemnify and hold harmless the Underwriters and each person, if any,
who controls the Underwriters within the meaning of the 1933 Act,
against any losses, claims, damages, expenses or liabilities, joint or
several, to which such Underwriter or such controlling person may
become subject, under the 1933 Act or otherwise, insofar as such
losses, claims, damages, expenses or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto) 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, in
light of the circumstances under which they were made, not misleading
in each case in respect of the relevant Certificates, and will
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it in connection with investigating or defending
any such action or claim; provided, however, that the Company shall 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 an untrue statement
or alleged untrue statement or omission or alleged omission made in any
such document in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the
Underwriters expressly for use therein. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) The Underwriters, severally and not jointly, will
indemnify and hold harmless the Company, each of its officers who
signed the Registration Statement, its directors, and any person
controlling the Company within the meaning of the 1933 Act against any
losses, claims, damages, expenses or liabilities to which the Company
or any such officer, director or controlling person may become subject,
under the 1933 Act or otherwise, insofar as such losses, claims,
damages, expenses or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
(or any amendment thereto) 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, in light of the
circumstances under which they were made, not misleading, in each case
to the extent, but 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 written
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information furnished to the Company by or on behalf of the
Underwriters expressly for use therein and will reimburse the Company
or any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Company, any such officer,
director or controlling person in connection with investigating or
defending any such action or claim. This indemnity agreement is in
addition to any liability which the Underwriters may otherwise have.
The Company acknowledges that, unless otherwise set forth in the
applicable Terms Agreement, the statements set forth in the last
paragraph of the cover page, the first and second sentences of the
third paragraph under the caption "Underwriting" and in the first
paragraph on page S-4 relating to [Underwriter's] intention to create a
secondary market, each as included in the applicable Prospectus
Supplement relating to a Series of Certificates, together with the
[Underwriter] Information (as defined in Section 10 hereof) relating to
a Series of Certificates constitute the only information furnished in
writing by or on behalf of the Underwriters expressly for use in the
Registration Statement relating to such Series of Certificates as
originally filed or in any amendment thereof, any related preliminary
prospectus or the Prospectus or in any amendment thereof or supplement
thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an
indemnifying party under this Section, notify such indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section. In
case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying
party); and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
this Section for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any
such case and the fees and expenses of such counsel shall be at the
expense of the indemnifying party if (i) the employment of such counsel
shall have been authorized in writing by the indemnifying party in
connection with the defense of such action, (ii) the indemnifying party
shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the
action, or (iii) the indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them and/or
other indemnified parties which are different from or additional to
those available to the indemnifying party (in which case the
indemnifying party shall not have the right to
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direct the defense of such action on behalf of the indemnified party).
Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim
or action effected without its written consent; provided, however, that
such consent was not unreasonably withheld.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages, expenses or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages, expenses or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Certificates to
which such loss, claim, damage, expense or liability (or actions in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then
each indemnifying party shall contribute to such amount paid or payable
by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company 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 (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total
net proceeds from such offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions
(or in the case of a public offering in negotiated transactions, the
difference between the proceeds to the Company and the aggregate price
received from the public) received by such Underwriters. The relative
fault of the Company on the one hand and the Underwriters on the other
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 Company on the one hand or such Underwriters on the
other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. Notwithstanding anything to the contrary in this Section
6(d), if the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in this Section 6(d) arise out of an
untrue statement or alleged untrue statement of a material fact
contained in any [Underwriter] 8-K (as such term is defined in Section
10 hereof) then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the
Company on the one hand and the Underwriters on the other (determined
in accordance with the preceding sentence) in connection with the
statements or omissions in such [Underwriter] 8-K which resulted in
such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other equitable considerations. The Company
and the
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Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro
rata allocation even if the Underwriters were treated as one entity for
such purpose or by any other method of allocation which does not take
account of the equitable considerations referred to in this subsection
(d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigation or defending any
such action or claim. Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Certificates
underwritten by it and distributed to the public were sold to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters to contribute pursuant to this subsection (d) are several
in proportion to their respective underwriting obligations with respect
to such Certificates and not joint.
SECTION 7. Representations, Warranties, and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or the applicable Terms Agreement or any
investigation made by or on behalf of the Underwriters or any controlling person
thereof, or by or on behalf of the Company, its officers or directors and shall
survive delivery of any Certificates to the Underwriters.
SECTION 8. Termination of Agreement. This Agreement may be terminated
for any reason at any time by either the Company or you upon the giving of
thirty days' notice of such termination to the other party hereto; provided,
however, that if a Terms Agreement has been entered into with respect to a
particular transaction, this Agreement and the Terms Agreement may not be
terminated in the manner set forth in this sentence with respect to such
particular transaction. You, as Representative of the Underwriters named in any
Terms Agreement may also terminate such Terms Agreement, immediately upon notice
to the Company, at any time at or prior to the applicable Closing Time (i) if
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement or
Prospectus, any change, or any development involving a prospective change, in or
affecting the condition, financial or otherwise, earnings, affairs or business
of the Company or HomeSide, whether or not arising in the ordinary course of
business, which in your judgment would materially impair the market for, or the
investment quality of, the Certificates, or (ii) if there has occurred any
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in your reasonable judgment, impracticable to market the Certificates or
enforce contracts for the sale of
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the Certificates, or (iii) if trading in securities generally on either the New
York Stock Exchange or the American Stock Exchange has been suspended or
materially limited or any setting of minimum prices shall have been established,
(iv) if a general moratorium of commercial banking activities has been declared
by either Federal or New York State authorities or (v) there shall have occurred
any outbreak or escalation of hostilities or other calamity or crisis the effect
of which on the financial markets is such as to make it, in your reasonable
judgment, impracticable to market the Certificates on the terms specified in
this Agreement and the Terms Agreement. In the event of any such termination,
(A) the covenants set forth in Section 3 with respect to any offering of
Certificates shall remain in effect so long as the Underwriters own any such
Certificates purchased from the Company pursuant to the applicable Terms
Agreement and (B) the covenant set forth in Section 3(c), the provisions of
Section 5, the indemnity agreement and contribution provisions set forth in
Section 6, and the provisions of Sections 7 and 12 shall remain in effect.
SECTION 9. Default by One or More of the Underwriters.
(a) If one or more of the Underwriters participating in an
offering of Certificates shall fail at the applicable Closing Time to
purchase the Certificates which it or they are obligated to purchase
hereunder and under the applicable Terms Agreement (the "Defaulted
Certificates"), then such of you as are named therein may in your
discretion arrange for you or another party or other parties to
purchase the Defaulted Certificates upon the terms contained herein. If
within thirty-six hours after such default by any Underwriter you do
not arrange for the purchase of such Defaulted Certificates, then the
Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to
you to purchase such Defaulted Certificates on the terms contained
herein. In the event that, within the respective prescribed periods,
you notify the Company that you have so arranged for the purchase of
such Defaulted Certificates, or the Company notifies you that it has so
arranged for the purchase of such Defaulted Certificates, you or the
Company shall have the right to postpone the Closing Time for a period
of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been party to this Agreement with respect to the
Certificate.
(b) If, after giving effect to any arrangements for the
purchase of Defaulted Certificates of a defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Defaulted Certificates
which remains unpurchased does not exceed 10% of the aggregate
principal amount of the Certificates to be purchased pursuant to the
applicable Terms Agreement, then the Company shall have the right to
require each non-defaulting Underwriter to
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purchase the principal amount of Certificates which such Underwriter
agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Certificates which such Underwriter agreed to
purchase pursuant to the applicable Terms Agreement) of the Defaulted
Certificates of the defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Defaulted Certificates of the defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Defaulted Certificates
which remains unpurchased exceeds 10% of the aggregate principal amount
of the Certificates to be purchased pursuant to the applicable Terms
Agreement, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Defaulted Certificates of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as provided in
Section 5 hereof and the indemnity agreement and contribution
provisions in Section 6 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
SECTION 10. Computational Materials and ABS Term Sheets.
[Describe arrangement regarding Computational Materials and ABS Term
Sheets]
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed,
delivered, telexed, or telegraphed and confirmed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be directed to you
at the address set forth on the first page hereof, to the attention of
______________. Notices to the Company shall be directed to HomeSide Mortgage
Securities, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
SECTION 12. Parties. This Agreement shall be binding upon and inure
solely to the benefit of you and the Company and to the extent provided in
Section 6 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter and their respective heirs, executors,
administrators, successors and assigns and any Terms Agreement shall be binding
upon and inure solely to the benefit of the Company and any Underwriter who
becomes a party to a Terms Agreement and to the extent provided in Section 6
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter and their respective heirs, executors,
administrators, successors and assigns. Nothing expressed or mentioned in this
Agreement or a Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto or thereto and
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their respective successors and the controlling person and officers and
directors referred to in Section 6 hereof and their heirs any legal or equitable
right, remedy or claim under or with respect to this Agreement or a Terms
Agreement or any provision herein or therein contained.
SECTION 13. Governing Law and Time. This Agreement and each Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York. Specified times of day refer to New York City time.
SECTION 14. Counterparts. This Agreement and any Terms Agreement may be
executed in any number of counterparts (which execution may take the form of an
exchange of any standard form of written telecommunication between you and the
Company), each of which shall constitute an original of any party whose
signature appears on it, and all of which shall together constitute a single
instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and the Company in accordance with its terms.
Very truly yours,
HOMESIDE MORTGAGE SECURITIES, INC.
By:
---------------------------------
Name:
Title:
HOMESIDE LENDING, INC.
By:
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
[UNDERWRITER]
By:
---------------------------------
Name:
Title:
26
EXHIBIT A
PASS-THROUGH CERTIFICATES
HOMESIDE MORTGAGE SECURITIES, INC., DEPOSITOR
TERMS AGREEMENT
Dated: _________, 19__
To: HomeSide Mortgage Securities, Inc.
Re: Underwriting Agreement, dated as of January __, 1998
(the "Underwriting Agreement")
Ladies and Gentlemen:
The undersigned (being herein called the "Underwriters"), understand
that HomeSide Mortgage Securities, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $_________ original principal amount of Pass-Through
Certificates described below (the "Certificates"). The Certificates will be
issued under a Pooling and Servicing Agreement dated as of _______________ among
the Company, as depositor, _______________, as servicer and _____________ as
trustee. The terms of the Certificates are summarized below and are more fully
described in the Company's Prospectus supplement prepared with respect to the
Certificates.
All the provisions (including defined terms) contained in the
Underwriting Agreement are incorporated by reference herein in their entirety
and shall be deemed to be part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. The Closing Time referred to
in Section 2 of the Underwriting Agreement shall be _______ a.m., New York City
time, on _____________. Subject to the terms and conditions set forth or
incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase [, severally and not jointly,] the [respective]
original principal amount[ s] of Certificates set forth opposite [its] [their]
name[s] in Exhibit I hereto at the purchase price set forth below.
The Underwriters will offer the Certificates for sale upon the terms
and conditions set forth in the Prospectus.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Underwriters will pay for the Certificates at the time and
place and in the manner set forth in the Underwriting Agreement.
Series Designation: ____________
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Terms of the Certificates and Underwriting Compensation:
Original
Principal Remittance Price to
Classes Amount* Rate Public
**
* Approximate. Subject to permitted variance in each case of plus or
minus 5%.
** The [Class A] Certificates are being offered by the
Underwriter from time to time in negotiated transactions or
otherwise at varying prices to be determined, in each case,
at the time of sale.
Certificate Rating:
_____ by [Rating Agency]
_____ by [Rating Agency]
REMIC Election:
The Company [does not] intend[s] to cause the Mortgage Pool to be
treated as a REMIC.
Credit Enhancement:
Cut-off Date:
The Cut-off Date is ___________, 19__.
Remittance Date:
The ____ day of each month (or, if such ____ day is not a business day,
the business day immediately following) commencing __________, 19__.
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Purchase Price:
The purchase price payable by the Underwriter for the [Class A]
Certificates is ___% of the aggregate principal balance of the [Class A]
Certificates as of the Closing Date plus accrued interest at the per annum rate
of ___% from __________, 19__ up to but not including the Closing Date.
Underwriting Commission:
Notwithstanding anything to the contrary in the Underwriting Agreement,
no additional underwriting commission shall be payable by the Company to the
Underwriter in connection with the purchase of the Certificates.
Information Provided by Underwriter:
Closing Date and Location:
__________ 19__ at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP.
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Please confirm your agreement by having an authorized Officer sign a
copy of this Agreement in the space set forth below and returning a signed copy
to us.
[UNDERWRITER]
By:
-----------------------------------
Name:
Title:
ACCEPTED:
HOMESIDE MORTGAGE SECURITIES, INC.
By:
-------------------------------
Name:
Title:
HOMESIDE LENDING, INC.
By:
-------------------------------
Name:
Title:
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Exhibit I
Original
Principal
Amount of
Name Certificates
Total ==============
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