EXECUTION
AMERICAN RESIDENTIAL EAGLE, INC.
MORTGAGE-BACKED CERTIFICATES
(Issuable in Series)
UNDERWRITING AGREEMENT
(Standard Terms)
Xxxxxx Brothers Inc. New York, New York
Acting on behalf of itself and, if June 11, 1998
applicable, as the Representative of
the several Underwriters named in
Schedule 1 to the Terms Agreement (in
either such capacity sometimes herein
the "Representative")
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. American Residential Eagle, Inc. (the "Depositor"),
a corporation organized and existing under the laws of the State of Delaware
and which is a wholly owned subsidiary of American Residential Investment
Trust, Inc., a Maryland corporation ("AmREIT"), may issue, from time to time,
securities entitled Mortgage-Backed Certificates (the "Certificates") in one
or more series, and within each series, in one or more 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 pursuant to a separate certificate trust agreement (each, a "Trust
Agreement") to be dated as of the respective cut-off date (each, a "Cut-off
Date") between the Depositor and First Union National Bank, a national banking
association with its main office in Charlotte, North Carolina, as certificate
trustee (the "Certificate Trustee"). Capitalized terms used but not defined
herein shall have the meanings given to them in the related Trust Agreement.
The Certificates issued under each Trust Agreement will represent
the entire beneficial ownership interest in a trust fund (the "Certificate
Trust Fund") established by such Trust Agreement. The assets of each Trust
Fund will consist primarily of a single Collateralized Mortgage Bond (an
"Underlying Bond") to be issued by a statutory business trust (each a "Bond
Trust" or a "Bond Issuer"), established under Delaware law pursuant to a
Deposit Trust Agreement (the "Deposit Trust Agreement") between the Depositor
and Wilmington Trust Company, a banking corporation organized under the laws
of the state of Delaware (each, an "Owner Trustee").
Each Underlying Bond will be issued pursuant to an indenture (each,
a "Bond Indenture") between the Bond Issuer and First Union National Bank, a
national banking association with its main office in Charlotte, North Carolina
(the "Bond Trustee"). Each Underlying Bond will be secured by a pool (each, a
"Mortgage Pool") of conventional, adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties having the original terms to maturity specified in the related
Terms Agreement referred to herein below. All of such Mortgage Loans will have
been deposited with the Bond Issuer by the Depositor which, in turn, will have
acquired such Mortgage Loans from AmREIT pursuant to an Agreement (the
"Mortgage Loan Purchase Agreement") between the Depositor and AmREIT. AmREIT
will be the manager of the Bond Issuer pursuant to a management agreement (the
"Management Agreement") entered into between AmREIT and the Bond Issuer.
Pursuant to the Bond Indenture, the Bond Issuer on or prior to the
related Closing Date (as defined below) will pledge, transfer and assign
without recourse to the Bond Trustee all of its right, title and interest in
and to each Mortgage Loan and all other assets included in the Bond Trust (the
"Mortgage Collateral") and will assign the Underlying Bond to the Depositor
for deposit to the Certificate Trust Fund to provide for the issuance of a
Series of Certificates.
The Mortgage Loans in each Mortgage Pool will be master serviced
pursuant to a master servicing agreement (each, a "Master Servicing
Agreement") among the Bond Issuer, the Bond Trustee and Norwest Bank
Minnesota, National Association, as master servicer (the "Master Servicer").
On or prior to the Closing Date, as to any Mortgage Loans not being directly
serviced by the Master Servicer, the Master Servicer will enter into or be
assigned mortgage servicing agreements (each, a "Servicing Agreement") with
certain servicers (the "Servicers"), including a Special Servicing Agreement
(the "Special Servicing Agreement") among the Bond Issuer, the Bond Trustee
and OCWEN Federal Bank FSB, a federal savings bank, as special servicer (the
"Special Servicer"). The Trust Agreement, Deposit Trust Agreement, Bond
Indenture, Mortgage Loan Purchase Agreement, Management Agreement, Master
Servicing Agreement, Servicing Agreement(s) and Special Servicing Agreement
are hereinafter together referred to as the "Transaction Documents".
If so specified in the related Terms Agreement, one or more
elections may be made to treat the assets of each Certificate Trust Fund as a
financial asset securitization investment trust (each, a "FASIT") for federal
income tax purposes.
Whenever the Depositor determines to make an offering of
Certificates (each, a "Certificate Offering") pursuant to this Agreement
through you, it will enter into an agreement (the "Terms Agreement") with the
Underwriter (which shall include you, whether acting alone in the sale of the
Certificates, in which case any reference in this Agreement to you as
"Representative" of the Underwriters shall be deemed to refer to you in your
individual capacity as Underwriter of the Certificates, or as a member of an
underwriting syndicate) providing for the sale of specified Classes of Offered
Certificates (as defined below) to, and the purchase and public offering
thereof by, you. Each such Certificate Offering which the Depositor elects to
make pursuant to this Agreement shall be governed by this Agreement, as
supplemented by the related Terms Agreement. Each Terms Agreement, which shall
be substantially in the form of Exhibit A hereto, shall specify, among other
things, the Classes of Certificates to be purchased by the Underwriter (the
"Offered Certificates"), the principal balance or balances of the Offered
Certificates, each subject to any stated variance, and the price or prices at
which such Offered Certificates are to be purchased by the Underwriter from
the Depositor.
2. Representations and Warranties. (a) The Depositor represents and
warrants to and agrees with the Underwriter, as of the date of the related
Terms Agreement, that:
(i) The registration statement specified in the related Terms
Agreement, on Form S-3/S-11, including a prospectus, has been filed
with the Securities and Exchange Commission (the "Commission") for
the registration under the Securities Act of 1933, as amended (the
"Act"), of collateralized mortgage bonds and mortgage-backed
certificates issuable in series, which registration statement has
been declared effective by the Commission. Such registration
statement, as amended to the date of the related Terms Agreement,
including any documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Act which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on
or before the effective date of the Registration Statement, is
hereinafter called the "Registration Statement", and such
prospectus, as such prospectus is supplemented by a prospectus
supplement relating to the Offered Certificates of the related
Series, each in the form first filed after the date of the related
Terms Agreement pursuant to Rule 424(b) under the Act, including any
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Act which were filed under the Exchange Act on or
before the date of such prospectus supplement (such prospectus
supplement, including such incorporated documents, in the form first
filed after the date of the related Terms Agreement pursuant to Rule
424(b) is hereinafter called the "Prospectus Supplement"), is
hereinafter called the "Prospectus". Any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Prospectus or the Prospectus Supplement
shall be deemed to refer to and include the filing of any document
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") after the effective date of the Registration Statement or the
issue date of the Prospectus or Prospectus Supplement, as the case
may be, deemed to be incorporated therein by reference pursuant to
Item 12 of Form S-3 under the Act.
(ii) The related Registration Statement, at the time it became
effective, and the Prospectus contained therein, and any amendments
thereof and supplements thereto filed prior to the date of the
related Terms Agreement, conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder; on the date of the related Terms Agreement
and on each Closing Date (as defined in Section 3 below), the
related Registration Statement and the related Prospectus, and any
amendments thereof and supplements thereto, will conform in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder; such Registration
Statement, at the time it became effective, did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; such Prospectus, on the date of any filing
pursuant to Rule 424(b) and on each Closing Date, will not include
any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading; and the
Detailed Description referred to in such Prospectus with respect to
the Mortgage Collateral securing the Underlying Bond, on each
Closing Date and the date of any filing thereof under cover of Form
8-K, will not include any untrue statement of a material fact or
omit to state any information which such Prospectus states will be
included in such Detailed Description; provided, however, that the
Depositor makes no representations or warranties as to the
information contained in or omitted from (A) such Registration
Statement or such Prospectus (or any supplement thereto) in reliance
upon and in conformity with written information furnished to the
Depositor by or on behalf of the Underwriter specifically for use in
the preparation thereof or (B) any Current Report (as defined in
Section 5(b) below), or in any amendment thereof or supplement
thereto, incorporated by reference in such Registration Statement or
such Prospectus (or any amendment thereof or supplement thereto).
(iii) The Depositor has been duly organized and is validly
existing as a corporation in good standing under the laws of the
state of Delaware, with full corporate power and authority to own
its assets and conducts its business as described in the Prospectus,
is duly qualified as a foreign corporation in good standing in all
jurisdictions in which the ownership or lease of its property or the
conduct of its business requires such qualification, except where
the failure to be so qualified would not have a material adverse
effect on the Depositor, and the Depositor is conducting its
business so as to comply in all material respects with the
applicable statutes, ordinances, rules and regulations of each
jurisdiction in which it is conducting business.
(iv) The Certificates of the related Series conform, or will
conform as of the Closing Date specified in the related Terms
Agreement, to the description thereof contained in the related
Prospectus; will each, if rated at the time of issuance in one of
the two highest rating categories by a nationally recognized
statistical rating organization, be when issued a "mortgage related
security" as such term is defined in Section 3(a)(41) of the
Exchange Act, and will each on the related Closing Date be duly and
validly authorized, and, when validly executed, countersigned,
issued and delivered in accordance with the related Trust Agreement
and sold to you as provided herein and in the related Terms
Agreement, will each be validly issued and outstanding and entitled
to the benefits of the related Trust Agreement.
(v) The execution and delivery of this Agreement, each
applicable Terms Agreement, the Deposit Trust Agreement, each
applicable Trust Agreement and the Certificates of a Series, are
within the corporate power of the Depositor and have been, or will
have been, duly authorized by all necessary corporate action on the
part of the Depositor; and neither the execution and delivery by the
Depositor of such instruments, nor the consummation by the Depositor
of the transactions herein or therein contemplated, nor the
compliance by the Depositor with the provisions hereof or thereof,
will (A) conflict with or result in a breach of, or constitute a
default under, any of the provisions of the certificate of
incorporation or by-laws of the Depositor or any of the provisions
of any law, governmental rule, regulation, judgment, decree or order
binding on the Depositor or any of its properties, or any of the
provisions of any Servicing Agreement or any indenture, mortgage,
contract or other instrument to which the Depositor is a party or by
which it is bound, or (B) result in the creation or imposition of
any lien, charge or encumbrance upon any of the Depositor's property
pursuant to the terms of any such indenture, mortgage, contract or
other instrument;
(vi) This Agreement and the related Terms Agreement have been
duly authorized, executed and delivered by the Depositor.
(vii) At or prior to the related Closing Date, the Depositor
will have entered into the Deposit Trust Agreement, the related
Trust Agreement and, assuming the due authorization, execution and
delivery thereof by the Owner Trustee, in the case of the Deposit
Trust Agreement, and the Certificate Trustee, in the case of the
related Trust Agreement, such agreements (on such Closing Date) will
constitute the legal, valid and binding agreement of the Depositor
enforceable in accordance with its terms, subject as to
enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights and to
general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law).
(viii) All approvals, authorizations, consents, orders or other
actions of any person, corporation or other organization, or of any
court, governmental agency or body or official (except with respect
to the state securities or Blue Sky laws of various jurisdictions),
required in connection with the valid authorization, issuance and
sale of the Certificates of a Series pursuant to this Agreement, the
applicable Terms Agreement and the applicable Trust Agreement, has
been or will be taken or obtained on or prior to the Closing Date
specified in the Terms Agreement;
(ix) At the applicable Closing Date, any Mortgage Loans
included in the related Mortgage Pool will meet the criteria for
selection described in the Prospectus.
(x) At the applicable Closing Date, the Underlying Bond will
constitute a valid and binding instrument, enforceable against the
Bond Issuer in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights and to
general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law).
(xi) At the date of its execution and delivery, each Servicing
Agreement, the Special Servicing Agreement and the Master Servicing
Agreement, if any, constituted or will constitute a valid and
binding agreement, and is or will be enforceable by the Bond Issuer
and the Bond Trustee against the applicable Servicer, Special
Servicer or Master Servicer, as the case may be, in accordance with
its terms, subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency or other similar laws
affecting creditors' rights generally as from time to time in
effect, and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
(xii) Neither the Bond Trust created pursuant to the Deposit
Trust Agreement nor the Certificate Trust Fund created pursuant to
the Trust Agreement is subject to registration under the Investment
Company Act of 1940, as amended (the "Investment Company Act") and
is not under the control of an investment Company.
(xiii) At the applicable Closing Date, the representations and
warranties made by the Depositor under the applicable Deposit Trust
Agreement and applicable Trust Agreement will be true and correct in
all material respects.
(xiv) At the time of execution and delivery of the applicable
Deposit Trust Agreement and applicable Bond Indenture, the Bond
Issuer will be the beneficial owner of the Mortgage Collateral being
pledged to the Bond Trustee pursuant thereto and being assigned to
the Depositor for deposit into the Certificate Trust Fund, free and
clear of any lien or other encumbrance, and the Bond Issuer will not
have assigned to any other person any of its right, title and
interest in the Mortgage Collateral.
(xv) At the time of execution and delivery of the applicable
Trust Agreement, the Depositor will have the power and authority to
transfer the Underlying Bond to the Certificate Trustee and to
transfer the Certificates to the Underwriter and, upon execution and
delivery of the Trust Agreement and delivery to the Underwriters of
the Certificates, the Underlying Bond will have been duly and
validly assigned to the Certificate Trustee in accordance with terms
of the Trust Agreement.
(xvi) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this
Agreement, the applicable Deposit Trust Agreement, the Trust
Agreement and the Certificates have been or will be paid at or prior
to the applicable Closing Date.
(xvii) At the applicable Closing Date with respect to a Series,
the Certificates shall have received the rating or ratings specified
in the related Terms Agreement.
(xviii) This Agreement does, and the applicable Transaction
Documents will, conform in all material respects to the descriptions
thereof contained in the Prospectus.
(xix) Any information concerning the characteristics of the
Mortgage Loans furnished by the Depositor or AmREIT to the
Underwriter in writing or by electronic transmission for use in the
preparation of Computational Materials or Structural Term Sheets was
accurate in all material respects as of the date furnished.
3. Purchase, Sale, Delivery and Payment of the Certificates. Subject
to the execution of the Terms Agreement for a particular Certificate Offering,
and subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this Agreement and such Terms
Agreement, the Depositor agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter agrees, severally and not jointly, to purchase
from the Depositor, the respective original principal amounts of the related
Certificates set forth in the Terms Agreement opposite the name of such
Underwriter, plus any additional original principal amount of Certificates
which such Underwriter may be obligated to purchase pursuant to Section 10
hereof, at the purchase price therefor set forth in such Terms Agreement.
Delivery of and payment for the Offered Certificates of a Series
shall be made at the offices of Xxxxxx Brothers Inc., 3 World Financial
Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M. New York
City time, or at such other place and time specified in the related Terms
Agreement, which date and time may be postponed by agreement between the
Underwriter and the Depositor (such date and time being herein called the
"Closing Date"). Delivery of such Offered Certificates shall be made by the
Depositor to the Underwriter against payment by the Underwriter of the
Purchase Price thereof specified in the Terms Agreement to or upon the order
of the Depositor by wire transfer in federal or other immediately available
funds or by check payable in federal funds, as the Depositor shall specify no
later than five full business days prior to such Closing Date. The
Certificates to be so delivered will be in definitive, fully registered form,
or maintained through the facilities of The Depository Trust Company, as
indicated in the applicable Prospectus Supplement, in such names and in such
authorized denominations as the Underwriter may request not less than two full
business days in advance of each Closing Date.
The Depositor agrees to notify the Underwriter at least two business
days before each Closing Date of the exact principal balance evidenced by the
Offered Certificates and to have such Offered Certificates available for
inspection, checking and packaging in New York, New York, no later than 12:00
noon New York time on the business day prior to such Closing Date.
The parties hereto agree that settlement for all securities sold
pursuant to this Agreement and the applicable Terms Agreement shall take place
on the settlement date agreed upon at the time of the related transaction and
set forth as the Closing Date in such Terms Agreement and not as set forth in
Rule 15c6-1(a) of the Exchange Act.
4. Offering by the Underwriter. It is understood that the several
Underwriters propose to offer the Offered Certificates of the related Series
for sale to the public as set forth in the related Prospectus.
5. Covenants of the Depositor. The Depositor covenants and agrees
with you and the several Underwriters participating in the Certificate
Offering that:
(a) Immediately following the execution of each Terms Agreement, the
Depositor will cause the Prospectus as supplemented by a Prospectus
Supplement relating to the Offered Certificates to be filed pursuant to
Rule 424 under the Act setting forth the amount of Certificates covered
thereby and the terms thereof not otherwise specified in the Prospectus,
the price at which such Certificates are to be purchased by the
Underwriters from the Depositor, either the initial public offering price
or the method by which the price at which such Certificates are to be
sold will be determined, the selling concessions and reallowances, if
any, and such other information as you and the Depositor deem appropriate
in connection with the offering of such Certificates. The Depositor will
promptly advise the Underwriter when such Prospectus as so supplemented
has been so filed, and prior to the termination of the Certificate
Offering to which such Prospectus relates also will promptly advise the
Underwriter (i) when any amendment to the related Registration Statement
specifically relating to such Offered Certificates shall have become
effective or any further supplement to such Prospectus has been filed,
(ii) of any request by the Commission for any amendment of such
Registration Statement or Prospectus or for any additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of such Registration Statement or the institution or
threatening of any proceeding for that purpose and (iv) of the receipt by
the Depositor of any written notification with respect to the suspension
of the qualification of such Offered Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose whether by the Commission or any other applicable authority
administering any state securities or Blue Sky Law. The Depositor will
not file any amendment of the related Registration Statement or
supplement to the related Prospectus (other than any amendment or
supplement specifically relating to one or more Series of Certificates
other than the Series that includes the related Offered Certificates)
unless (i) the Depositor has furnished the Underwriter with a copy for
its review prior to filing, and (ii) the Underwriter has consented to
such filings. The Depositor will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) The Depositor will cause any Computational Materials and any
Structural Term Sheets (each as defined in Section 8 below) with respect
to the Offered Certificates of a Series that are delivered by the
Underwriter to the Depositor pursuant to Section 8 to be filed with the
Commission on a Current Report on Form 8-K (each such filing of such
materials, a "Current Report") pursuant to Rule 13a-11 under the Exchange
Act on the business day immediately following the later of (i) the day on
which such Computational Materials and Structural Term Sheets are
delivered to counsel for the Depositor by the Underwriter prior to 2:00
p.m. New York time and (ii) the date on which the related Terms Agreement
is executed and delivered. The Depositor will cause any Collateral Term
Sheet (as defined in Section 9 below) with respect to the Offered
Certificates of a Series that is delivered by the Representative to the
Depositor in accordance with the provisions of Section 9 to be filed with
the Commission on a Current Report pursuant to Rule 13a-11 under the
Exchange Act on the business day immediately following the day on which
such Collateral Term Sheet is delivered to counsel for the Depositor by
the Underwriter prior to 2:00 p.m. New York time. In each case, the
Depositor will promptly advise the Underwriter when such Current Report
has been so filed. Each such Current Report shall be incorporated by
reference in the related Prospectus and the related Registration
Statement.
(c) If, at any time when a Prospectus relating to the Offered
Certificates of a Series is required to be delivered under the Act, any
event occurs as a result of which the related Prospectus as then amended
or supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein
in light of the circumstances under which they were made not misleading,
or if it shall be necessary at any time to amend or supplement the
related Prospectus to comply with the Act or the rules thereunder, the
Depositor promptly will prepare and file with the Commission, subject to
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance.
(d) The Depositor will furnish to the Underwriter and counsel for
the Underwriter, without charge, as many signed copies of the related
Registration Statement (including exhibits thereto) and, so long as
delivery of a Prospectus by the Underwriter or dealer may be required by
the Act, as many copies of the related Prospectus and any supplements
thereto (other than exhibits to the related Current Report) as the
Underwriter may reasonably request.
(e) The Depositor will furnish such information, execute such
instruments and take such actions as may be reasonably requested by the
Underwriter to qualify the Offered Certificates of a Series for sale
under the laws of such jurisdictions as the Underwriter may designate, to
maintain such qualifications in effect so long as required for the
distribution of such Offered Certificates and to determine the legality
of such Offered Certificates for purchase by institutional investors;
provided, however, that the Depositor shall not be required to qualify to
do business in any jurisdiction where it is not qualified on the date of
the related Terms Agreement or to take any action which would subject it
to general or unlimited service of process in any jurisdiction in which
it is not, on the date of the related Terms Agreement, subject to such
service of process.
(f) So long as the Offered Certificates of a Series are outstanding,
upon request, the Depositor will furnish to the Underwriter copies of (a)
the annual independent public accountants' servicing report furnished to
the Certificate Trustee pursuant to the related Trust Agreement (b)
copies of all reports filed with the Commission and copies of each notice
published or mailed to holders of the Certificates pursuant to the
related Trust Agreement; and (c) such other information with respect to
the related Certificate Trust Fund or its financial condition or results
of operation as you may reasonably request, including but not limited to
information necessary and appropriate to the maintenance of a secondary
market in the Certificates of such Series.
(g) The Depositor will cause the Certificate Trustee to furnish or
make available, within a reasonable time after the end of each calendar
year, to each holder of a Certificate at any time during such year, such
information as the Depositor deems necessary or desirable to assist the
Certificateholders in preparing their federal income tax returns.
(h) Whether or not the transactions contemplated hereby and by the
related Terms Agreement shall be consummated, except as otherwise
provided with respect to the first Series of Certificates sold hereunder
in the Purchase Price and Terms Letter dated December 3, 1997 between you
and AmREIT, the Depositor shall be responsible for the payment of any
costs and expenses for which details are submitted, in connection with
the performance of its obligations under this Agreement and the related
Terms Agreement, including, without limitation, (a) the cost and expenses
of printing or otherwise reproducing the related Registration Statement
or Prospectus, this Agreement, the related Terms Agreement, the
Transaction Documents and the Offered Certificates, and (b) the cost of
delivering the related Offered Certificates to the office of the
Underwriter, insured to the satisfaction of the Underwriter (it being
understood that, except as provided in this paragraph (h) and in Section
7 hereof, the Underwriter will pay all its own costs and expenses,
including the fees of counsel for the Underwriter, transfer taxes on
resale of any Offered Certificates by it and advertising expenses
connected with any offers that it may make.
(i) During the period of 30 days from the date of the final
Prospectus the Depositor will not, without the prior consent of the
Underwriter, directly or indirectly, issue, sell, offer or contract to
sell, grant any option for sale of, or otherwise transfer or dispose of,
any Series of securities of the Trust other than for specified classes of
Offered Certificates designated in the related Terms Agreement.
6. Conditions to the Obligations of the Underwriter. The obligations
of the several Underwriters named in any Terms Agreement to purchase and pay
for the Offered Certificates of any Series shall be subject to the accuracy in
all material respects of the representations and warranties on the part of the
Depositor contained in this Agreement, as supplemented by the related Terms
Agreement, as of the respective dates thereof and the related Closing Date, to
the accuracy of the statements of the Depositor made in any applicable
officers' certificates pursuant to the provisions hereof, to the performance
by the Depositor of its obligations under this Agreement and such Terms
Agreement and to the following additional conditions applicable to the related
Certificate Offering:
(a) All actions required to be taken and all filings required to be
made by the Depositor under the Act prior to the sale of the Certificates
of such Series shall have been duly taken or made prior to the applicable
Closing Date, no stop order suspending the effectiveness of the related
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) No Underwriter shall have advised the Depositor that the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact that in the opinion of the
Representative is material, or omits to state a fact that in the opinion
of the Representative is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(c) Xxxxx & Xxxxx, counsel for the Depositor, shall have furnished
to the Underwriter an opinion, dated the related Closing Date, to the
effect that:
(i) this Agreement and the related Terms Agreement have been
duly authorized, executed and delivered by the Depositor;
(ii) each of the related Transaction Documents to which the
Depositor or the Bond Issuer is a party has been duly authorized,
executed and delivered by the Depositor or the Bond Issuer, as the
case may be, and is a legal, valid and binding agreement of such
party enforceable against the Depositor in accordance with its
terms;
(iii) the issuance of the Certificates of the related Series
and sale of the related Offered Certificates has been duly
authorized by all requisite corporate action on the part of the
Depositor and the Certificates of such Series, when duly
countersigned by the Certificate Trustee in accordance with the
related Trust Agreement, will be validly issued and outstanding and
entitled to the benefits of such Trust Agreement;
(iv) the issuance of the Underlying Bond has been duly
authorized by the Depositor and the Bond Issuer and when such Bond
has been duly executed and authenticated by the Bond Trustee in
accordance with the Bond Indenture, will be validly issued and
outstanding and entitled to the benefits of the Indenture.
(v) neither the related Deposit Trust Agreement nor the Trust
Agreement is required to be qualified under the Trust Indenture Act
of 1939, as amended, and the respective trusts created thereunder
are not required to be registered under the Investment Company Act
of 1940, as amended;
(vi) the Bond Indenture satisfies the requirements of and is
qualified under the Trust Indenture Act of 1939, as amended.
(vii) the related Registration Statement is effective under the
Act and, to the best of such counsel's knowledge, no stop order with
respect thereto has been issued, and no proceeding for that purpose
has been instituted or threatened by the Commission; such
Registration Statement and the related Prospectus, and each
amendment or supplement thereto (except the financial statements and
schedules and other financial and statistical data included therein
and the documents incorporated by reference therein) applicable to
the related Offered Certificates and the obligations of the
Depositor relating thereto, as of their respective effective or
issue dates, appeared on their face to be appropriately responsive
in all material respects to the requirements of the Act and the
rules and regulations thereunder; and no information has come to the
attention of such counsel that causes it to believe that (A) such
Registration Statement (except any document incorporated by
reference therein) as of the date it became effective, or such
Registration Statement (except as aforesaid, and except the
financial statements and schedules and the other financial and
statistical data included therein, the documents incorporated by
reference therein) as of the date the most recent post effective
amendment thereto, if any, became effective, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or (B) such Prospectus (except any document
incorporated by reference therein) or any amendment or supplement
thereto (except as aforesaid, and except the financial statements
and schedules and the other financial and statistical data included
therein and the documents incorporated by reference therein), as of
their respective issue dates or at the related Closing Date,
contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading;
(viii) the statements set forth under the headings "Description
of the Certificates" and "Description of the Underlying Bond" in the
related Prospectus, insofar as such statements purport to summarize
certain provisions of the related Bond Indenture, Trust Agreement,
the Underlying Bond and the related Offered Certificates, provide a
fair summary of such provisions in all material respects;
(ix) the statements set forth in the related Prospectus under
the heading "Certain Legal Aspects of the Mortgage Loans" (insofar
as they relate specifically to the purchase, ownership and
disposition of the related Offered Certificates) to the extent that
they constitute matters of law or legal conclusions, provide a fair
summary of such laws and conclusions in all material respects;
(x) assuming that some or all of the Offered Certificates of
the related Series shall be rated at the time of issuance in one of
the two highest rating categories by a nationally recognized
statistical rating organization, each Offered Certificate so rated
will be at the time of issuance, a "mortgage related security" as
such term is defined in Section 3(a)(41) of the Exchange Act; and
(xi) the conditions to the use by the Depositor of a
registration statement on Form S-3/S-11 under the Act, as set forth
in the General Instructions to such Forms, have been satisfied with
respect to the Registration and the Prospectus; and, to the best of
such counsel's knowledge, there are no certificates or documents
which are required to be filed as exhibits to the Registration
Statement pursuant to the Act or the Rules and regulations
thereunder that have not been so filed.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by, officers of the parties to this Agreement, the related
Transaction Documents or the related Trust Agreement. Such opinion may assume
the due authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the Depositor. Such
opinion may be qualified, insofar as it concerns the enforceability of the
documents referred to therein, to the extent that such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights in general and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law). Such opinion may be further qualified as
expressing no opinion as to the statements in the related Prospectus under the
heading "Certain Legal Aspects of the Mortgage Loans", except insofar as such
statements relate to the laws of the State of California and the laws of the
United States. In addition, such opinion may be qualified as an opinion only
on the law of the States of California, New York, Delaware and the federal law
of the United States of America.
Any opinions of corporate counsel or tax counsel to the Depositor
which are required to be delivered to the Rating Agencies shall also be
addressed to the Underwriter and furnished to the Underwriters on the Closing
Date.
(d) Jeffers, Wilson, Xxxxx & Xxxx, LLP, tax counsel for the
Depositor, shall have furnished to the Underwriter an opinion, dated the
related Closing Date, to the effect that:
(i) the statements set forth in the related Prospectus under
the headings (a) "Federal Income Tax Consequences" (insofar as they
relate specifically to the purchase, ownership and disposition of
the related Offered Certificates) and constitute conclusions of law,
are true and correct in all material respects; and (b) "ERISA
Considerations" (insofar as they relate specifically to the
purchase, ownership and disposition of such Offered Certificates)
and describe certain provisions of federal statutes and regulations,
have been reviewed by such counsel, and such statements fairly
describe such provisions and regulations; and
(ii) assuming compliance with all provisions of the related
Trust Agreement, for federal income tax purposes, (A) if any
election is made to treat the assets of the Certificate Trust Fund
as a FASIT, the related Certificate Trust Fund (and any specified
subgrouping therein) will qualify as a FASIT pursuant to Section
860L of the Internal Revenue Code of 1986, as amended (the "Code"),
each Class of Certificates of the related Series, other than the
related Residual Class or Classes, will constitute a class of
"regular interests" in the related FASIT within the meaning of the
Code, and each Class of such Certificates specified in the related
Prospectus as a Class of Ownership Certificates will constitute the
"ownership interest" in the related FASIT within the meaning of the
Code; (B) if no such FASIT election is made, the Trust Fund will be
treated as a "grantor trust". Such opinion may be qualified as
expressing no opinion as to the statements in such Prospectus under
the headings "ERISA Considerations" and "Federal Income Tax
Consequences", except insofar as such statements relate to the
federal law of the United States.
(e) Xxxxx & Xxxxx, corporate counsel for the Depositor, shall have
furnished to the Underwriter an opinion, dated the related Closing Date,
to the effect that:
(i) The Depositor 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 to own its properties, to
conduct its business as described in the related Prospectus and to
enter into and perform its obligations under this Agreement, the
related Terms Agreement, and the other Transaction Documents of the
related Series to which it is a party;
(ii) The Depositor has full power and authority to sell the
Certificates as contemplated herein and in the related Agreement;
(iii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by
the Depositor of the transactions contemplated herein or in the
related Transaction Documents to which it is a party, except such as
may be required under the blue sky laws of any jurisdiction and such
other approvals as have been obtained;
(iv) Neither the issuance of the Certificates of the related
Series nor delivery of the related Offered Certificates, nor the
consummation of any other of the transactions contemplated in this
Agreement, the related Terms Agreement or the related Transaction
Documents to which the Depositor is a party, nor the fulfillment of
the terms of the related Certificates, this Agreement, or the
related Terms Agreement or Transaction Documents to which it is a
party, will conflict with or violate any term or provision of the
certificate of incorporation or by-laws of the Depositor or any
statute, order or regulation applicable to the Depositor of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over the Depositor and will not conflict with,
result in a breach or violation or the acceleration of, or
constitute a default under, the terms of any indenture or other
agreement or instrument known to such counsel to which the Depositor
is a party or by which it or its property is bound; and
(v) There are no actions, proceedings or investigations pending
or, to the best knowledge of such counsel, threatened before any
court, administrative agency or other tribunal (i) asserting the
invalidity of this Agreement, the related Terms Agreement, the
related Certificates, or the related Transaction Documents to which
it is a party, (ii) seeking to prevent the issuance of the
Certificates of the related Series or the consummation by the
Depositor of any of the transactions contemplated by this Agreement,
such Terms Agreement or the related Transaction Documents to which
it is a party, or (iii) which might materially and adversely affect
the performance by the Depositor of its obligations under, or the
validity or enforceability of, this Agreement, such Terms Agreement,
the related Certificates or the related Transaction Documents to
which it is a party.
In rendering his/her opinion such counsel may rely as to matters of fact, to
the extent deemed proper and as stated therein, on certificates of responsible
officers of the Depositor or public officials. In addition, such opinion may
be qualified as an opinion only on the laws of the State of Delaware.
(f) The Underwriter shall have received from counsel for the
Underwriter, such opinion or opinions, dated the related Closing Date,
with respect to the issuance and sale of the Certificates of the related
Series, the related Registration Statement, the related Prospectus and
such other related matters as the Underwriter may reasonably require, and
the Depositor shall have furnished to such counsel such documents as the
Underwriter may reasonably request for the purpose of enabling them to
pass upon such matters.
(g) The Depositor shall have furnished to the Underwriter a
certificate of the Depositor, signed by the President or any Vice
President and the Executive Vice President and Chief Financial Officer as
the principal financial and accounting officer of the Depositor, dated
the related Closing Date, to the effect that the signers of such
certificate have carefully examined the related Registration Statement
(excluding any Current Reports and any other documents incorporated by
reference therein), the related Prospectus, the Detailed Description
referred to in such Prospectus (excluding any related Current Report),
this Agreement and the related Terms Agreement and that:
(i) the representations and warranties of the Depositor in this
Agreement are true and correct in all material respects on and as of
the related Closing Date with the same effect as if made on such
Closing Date, and the Depositor has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date;
(ii) no stop order suspending the effectiveness of such
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to their knowledge, threatened; and
(iii) nothing has come to their attention that would lead them
to believe that such Registration Statement (excluding any Current
Report) contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading, that the related
Prospectus (excluding any related Current Report) contains any
untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or that the Detailed Description
referred to in such Prospectus includes any untrue statement of a
material fact or omits to state any information which the Prospectus
states will be included in such Detailed Description.
(h) Xxxxxxxxxx Xxxxxxxx LLP, counsel for the Certificate Trustee,
shall have furnished to the Underwriter an opinion, dated the related
Closing Date, to the effect that:
(i) the Certificate Trustee has been duly formed and is validly
existing as a national banking association in good standing under
the laws of the United States with corporate power to own its
properties and conduct its business as presently conducted by it, to
conduct business as a trustee and to enter into and perform its
obligations under the related Trust Agreement;
(ii) the related Trust Agreement has been duly
authorized, executed and delivered by the Certificate Trustee and
constitutes the legal, valid and binding agreement of the
Certificate Trustee enforceable against the Certificate Trustee in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and to
judicial discretion, and general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law);
(iii) the Certificate Trustee has duly accepted its appointment
as trustee under the related Trust Agreement;
(iv) no consent, approval, authorization or order of any state
or federal court or government agency or body is required on the
part of the Certificate Trustee for the consummation of the
transactions contemplated in the related Trust Agreement, except
such as may be required under any federal or state securities law;
and
(v) the performance on the part of the Certificate Trustee of
any of the transactions contemplated in the related Trust Agreement
does not conflict with or result in a breach or violation of any
term or provision of, or constitute a default under, the charter
documents, as amended, or By-Laws of the Certificate Trustee, or any
state or federal statute or regulation applicable to the Certificate
Trustee, or to such counsel's knowledge, any indenture or other
agreement or instrument to which the Certificate Trustee is a party
or by which it is bound, or, to such counsel's knowledge, any order
of any state or federal court, regulatory body, administrative
agency or governmental body having jurisdiction over the Certificate
Trustee.
In addition, such counsel shall furnish to the Underwriter such opinions
as to the treatment of the Trust Fund for purposes of state or federal
tax law as are reasonably satisfactory to the Underwriter.
(i) (A) Xxxxxxxx, Xxxxxx & Finger, counsel for the Owner Trustee,
shall have furnished to the Underwriter an opinion, dated the related
Closing Date, to the effect that:
(i) The Owner Trustee is duly incorporated and validly
existing as a banking corporation in good standing under
the laws of the State of Delaware;
(ii) The Owner Trustee has power and authority to execute,
deliver and perform the Deposit Trust Agreement and to
consummate the transactions contemplated thereby;
(iii) The Deposit Trust Agreement has been duly authorized,
executed and delivered by the Owner Trustee and
constitutes a legal, valid and binding obligation of the
Owner Trustee, enforceable against the Owner Trustee, in
accordance with its terms;
(iv) Neither the execution, delivery and performance by the
Owner Trustee of the Deposit Trust Agreement, nor the
consummation of the transactions contemplated thereby, nor
compliance with the terms thereof conflict with or result
in a breach of, or constitute a default under the
provisions of, the Owner Trustee's certificate of
incorporation or bylaws or any law, rule or regulation of
the State of Delaware governing the banking or trust
powers of the Owner Trustee or, to our knowledge without
independent investigation, any judgment or order
applicable to the Owner Trustee or its properties or, to
our knowledge without independent investigation, and
indenture, mortgage, contract or other agreement or
instrument to which the Owner Trustee is a party or by
which it is bound; and
(v) No consent, approval, or other authorization of, or
registration, declaration or filing with, any court or
governmental agency or commission of the State of Delaware
is required by or with respect to the Owner Trustee for
the valid execution and delivery of the Deposit Trust
Agreement, or for the validity or enforceability thereof,
other than the filing of the Certificate of Trust.
(B) Xxxxxxxx, Xxxxxx & Finger, counsel for the Owner Trustee, shall
have furnished to the Underwriter an opinion, dated the related
Closing Date, to the effect that:
(i) The Bond Trust has been duly formed and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act, 12 Del. C. ss. 3801, et seq.
(the "Act");
(ii) The Deposit Trust Agreement authorizes the Bond Trust to
execute and deliver the Transaction Documents to which it
is a party, to issue the Underlying Bond and the related
investor certificate (the "Investor Certificate") and to
grant the Mortgage Loans to the Bond Trustee as security
for the Underlying Bond;
(iii) The Bond Trust has the power and authority, pursuant to
the Deposit Trust Agreement and the Act, to execute,
deliver and perform its obligations under the Transaction
Documents and the Underlying Bond;
(iv) The Bond Trust has duly authorized, executed and delivered
the Transaction Documents and the Underlying Bond;
(v) When the Investor Certificate has been duly executed by
the Owner Trustee on behalf of the Bond Trust and duly
authenticated by the Owner Trustee in accordance with the
Deposit Trust Agreement, the Investor Certificate will be
validly issued and entitled to the benefits of the Deposit
Trust Agreement;
(vi) Under ss. 3805(b) of the Act, no creditor of any Holder of
an Investor Certificate shall have any right to obtain
possession of, or otherwise exercise legal or equitable
remedies with respect to, the property of the Bond Trust
except in accordance with the terms of the Deposit Trust
Agreement;
(vii) Under ss. 3805(c) of the Act, and assuming that the
Deposit Trust Agreement conveys good title to the Mortgage
Loans to the Bond Trust as a true sale and not as a
security arrangement, the Bond Trust rather than the
Holder of the Investor Certificate is the owner of the
Mortgage Loans;
(viii) The Owner Trustee is not required to hold legal title to
the Mortgage Loans in order for the Bond Trust to qualify
as a business trust under the Act;
(ix) The execution by the Bond Trust of the Transaction
Documents does not require any consent, approval or
authorization of, or any registration or filing with, any
governmental authority of the State of Delaware applicable
to the Bond Trust; and
(x) Neither the consummation by the Bond Trust of the
transactions contemplated in the Transaction Documents,
nor the fulfillment of the terms thereof by the Bond Trust
will conflict with or result in a breach or violation of
any law of the State of Delaware applicable to the Bond
Trust.
(j) you shall have received an opinion of counsel to the Bond
Trustee, dated the applicable Closing Date, and in the form agreed to on
or prior to the date of the applicable Terms Agreement;
(k) if applicable, you shall have received the
opinion of counsel to the Master Servicer, dated as of the applicable
Closing Date, in form and substance satisfactory to your counsel, to the
effect that:
(i) the Master Servicer has been duly organized and is validly
existing as a national banking association under the laws of the
United States and is duly qualified to do business, and is in good
standing under the laws of each jurisdiction in which the
performance of its duties under the applicable master servicing
agreement (the "Master Servicing Agreement ")would require such
qualification;
(ii) the execution and delivery by the Master Servicer of the
Master Servicing Agreement is within the corporate power of the
Master Servicer and has been duly authorized by all necessary
corporate action on the part of the Master Servicer; and neither the
execution and delivery of instrument, nor the consummation of the
transactions provided for therein, nor compliance with the
provisions thereof, will conflict 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 Master
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
bylaws of the Master Servicer or any law, administrative regulation
or administrative or court decrees;
(iii) the Master Servicing Agreement has been duly and validly
authorized, executed and delivered by the Master Servicer and
assuming due authorization, execution and delivery by the Bond
Trustee constitutes the valid and binding obligation of the Master
Servicer, enforceable in accordance with its terms, subject, as the
enforcement of remedies, to (A) applicable bankruptcy, insolvency,
reorganization, moratorium or other laws relating to creditors'
rights generally as from time to time in effect, and (B) to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(l) if applicable, you shall have received the opinion of counsel to
the Special Servicer, dated as of the applicable Closing Date, in form
and substance satisfactory to your counsel, to the effect that:
(i) The Special Servicer is a federal savings bank duly
organized and validly existing and in good standing under
the laws of the United States with full power and
authority to own its properties and carry on its business
as presently conducted by it. The Special Servicer has the
full power and authority to execute and deliver, engage in
the transactions contemplated by, perform its obligations
under and observe the terms and conditions of the Special
Servicing Agreement;
(ii) The Special Servicing Agreement has been duly and validly
authorized, executed and delivered by it, and (assuming
the due authorization, execution and delivery thereof by
the other parties thereto) constitutes the valid, legal
and binding agreement of the Special Servicer, enforceable
against the Company in accordance with its terms, except
as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws relating to or
affecting the rights of creditors generally, (ii) general
principles of equity whether such enforcement is
considered in a proceeding in equity or at law, (iii)
public policy considerations underlying the securities
laws, to the extent that such public policy considerations
limit the enforceability of the provisions, if any, of the
Special Servicing Agreement which purports to provide
indemnification from securities law liabilities, (iv) the
judicial imposition of an implied covenant of good faith
and fair dealing, and (v) laws relating to fraudulent
conveyances;
(iii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the
execution, delivery and performance by the Special
Servicer of, or compliance by the Special Servicer with,
the Special Servicing Agreement or the consummation of the
transactions contemplated by the Special Servicing
Agreement; except that no opinion need be expressed by
such counsel as to the registration or qualification of
any certificates under any securitization under applicable
federal or state securities laws;
(iv) The fulfillment of the terms of or the consummation of any
of the transactions contemplated in the Special Servicing
Agreement (a) will not result in a breach of any term or
provision of the charter or bylaws of the Special
Servicer, or (b) to the best of my knowledge, after due
inquiry, will not conflict with, result, in a breach,
violation or acceleration of or constitute a default
under, the terms of any indenture or other agreement or
instrument to which the Special Servicer is a party or by
which it is bound, or will not conflict with, any federal
statute, or any order or regulation of any federal court,
regulatory body, administrative agency or governmental
body having jurisdiction over the Special Servicer; and
(v) To the best of my knowledge, after due inquiry, there are
no actions, proceedings or investigations pending or
threatened against the Special Servicer before any court,
administrative agency or other tribunal (i) asserting the
invalidity of the Special Servicing Agreement, (ii)
seeking to prevent the consummation of any of the
transactions contemplated in the Special Servicing
Agreement, or (iii) which might materially and adversely
affect the performance by the Special Servicer of its
obligations under, or the validity or enforceability of,
the Special Servicing Agreement.
(m) KPMG Peat Marwick and Deloitte & Touche LLP shall have each
furnished to the Underwriter a letter, dated as of the date of the
related Terms Agreement, in form and substance satisfactory to the
Underwriter, stating in effect that they have performed certain specified
procedures as a result of which they have determined that such
information as the Underwriter may reasonably request of an accounting,
financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general accounting
records of the Depositor) set forth in the related Prospectus Supplement
agrees with the accounting records of the Depositor, excluding any
questions of legal interpretation.
(n) KPMG Peat Marwick shall have furnished to the Underwriter a
letter, dated as of the related Closing Date, in form and substance
satisfactory to the Underwriter, stating in effect that they have
performed certain specified procedures as a result of which they have
determined that such information as the Underwriter may reasonably
request of an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information derived from
the general accounting records of the Depositor and which is obtained
from an analysis of a sample of the Mortgage Loans included in the
related Mortgage Pool) set forth in the related Prospectus Supplement and
in the Detailed Description relating to such Prospectus Supplement is
mutually consistent and agrees with the accounting records of the
Depositor and, where applicable, the related Mortgage Loan files of
AmREIT, excluding any questions of legal interpretation.
(o) The Offered Certificates of the related Series shall have
received the ratings specified in the related Terms Agreement (the
"Required Ratings").
(p) Prior to the related Closing Date, the Depositor shall have
furnished to the Underwriter such further information, certificates and
documents as the Underwriter may reasonably request.
(q) If any Certificates of the related Series are to be sold to any
other underwriter and/or offered in reliance upon an exemption from the
registration requirements of the Act, the sale at or prior to the related
Closing Date of such Certificates to the purchaser thereof shall have
occurred.
(r) Subsequent to the date of the related Terms Agreement, there
shall not have been any change, or any development involving a
prospective change, in or affecting the business, properties or business
prospects of the Depositor or its Affiliates which the Underwriter
concludes in its judgment, after consultation with the Depositor,
materially impairs the investment quality of the Offered Certificates of
the related Series so as to make it impractical or inadvisable to proceed
with the public offering or the delivery of such Offered Certificates as
contemplated by the related Prospectus.
(s) On or prior to the Closing Date, there shall have been no
downgrading, nor shall any notice have been given of (i) any intended or
possible downgrading or (ii) any review or possible changes, the
direction of which has not been indicated, of the rating accorded and
originally requested by the Depositor relating to any previously issued
asset-backed securities of the Depositor by any "nationally recognized"
statistical rating organization (as such term is defined for purposes of
the Exchange Act).
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects with respect to the particular Offered
Certificates of a Series when and as provided in this Agreement and the
related Terms Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement and the related Terms Agreement shall not
be in all material respects reasonably satisfactory in form and substance to
the Underwriter and its counsel, this Agreement (with respect to the related
Offered Certificates) and the related Terms Agreement and all obligations of
the Underwriter hereunder (with respect to the related Offered Certificates)
and thereunder may be canceled at, or at any time prior to, the related
Closing Date by the Underwriter. Notice of such cancellation shall be given to
the Depositor in writing, or by telephone or telegraph confirmed in writing.
7. Indemnification and Contribution.
(a) AmREIT and the Depositor, jointly and severally, agree to
indemnify and hold harmless the Underwriter and each person who controls
the Underwriter within the meaning of the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange
Act, or other Federal or state statutory law or regulation, at common law
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 or alleged untrue statement of a material fact contained in the
Registration Statement relating to the Underlying Bond or the Offered
Certificates of the applicable Series as it became effective or in any
amendment or supplement thereof, or in such Registration Statement or the
related Prospectus, or in any amendment thereof, or in the Detailed
Description referred to in such Prospectus or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability
or action; provided, however, that (i) neither AmREIT nor the Depositor
will be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission
made therein (A) in reliance upon and in conformity with written
information furnished to either of them as herein stated by or on behalf
of the Underwriter specifically for use in connection with the
preparation thereof or (B) in any Current Report or any amendment or
supplement thereof, except to the extent that any untrue statement or
alleged untrue statement therein or omission therefrom results (or is
alleged to have resulted) directly from an error (a "Mortgage Pool
Error") in the information concerning the characteristics of the Mortgage
Loans furnished by the Depositor to the Underwriter in writing or by
electronic transmission that was used in the preparation of either (x)
any Computational Materials or ABS Term Sheets (or amendments or
supplements thereof) (as defined in Section 9 hereof) included in such
Current Report (or amendment or supplement thereof) or (y) any written or
electronic materials furnished to prospective investors on which the
Computational Materials (or amendments or supplements) were based, (ii)
such indemnity with respect to any Corrected Statement (as defined below)
in such Prospectus (or supplement thereto) shall not inure to the benefit
of the Underwriter (or any person controlling the Underwriter) from whom
the person asserting any loss, claim, damage or liability purchased the
Certificates of the related Series that are the subject thereof if such
person did not receive a copy of a supplement to such Prospectus at or
prior to the confirmation of the sale of such Certificates and the untrue
statement or omission of a material fact contained in such Prospectus (or
supplement thereto) was corrected (a "Corrected Statement") in such other
supplement and such supplement was furnished by the Depositor to the
Underwriter prior to the delivery of such confirmation, and (iii) such
indemnity with respect to any Mortgage Pool Error shall not inure to the
benefit of the Underwriter (or any person controlling the Underwriter)
from whom the person asserting any loss, claim, damage or liability
received any Computational Materials (or any written or electronic
materials on which the Computational Materials are based) or ABS Term
Sheets that were prepared on the basis of such Mortgage Pool Error, if,
prior to the time of confirmation of the sale of the applicable
Certificates to such person, the Depositor notified the Underwriter in
writing of the Mortgage Pool Error or provided in written or electronic
form information superseding or correcting such Mortgage Pool Error (in
any such case, a "Corrected Mortgage Pool Error"), and the Underwriter
failed to notify such person thereof or to deliver to such person
corrected Computational Materials (or underlying written or electronic
materials) or ABS Term Sheets. This indemnity agreement will be in
addition to any liability which AmREIT or the Depositor may otherwise
have.
(b) The Underwriter agrees to indemnify and hold
harmless the Depositor, each of its directors, each of its officers who
signs the Registration Statement relating to the Offered Certificates of
the applicable Series, and each person who controls the Depositor within
the meaning of the Act or the Exchange Act to the same extent as the
foregoing indemnities from AmREIT and the Depositor to the Underwriter,
but only with reference to (A) written information furnished to AmREIT or
the Depositor by or on behalf of the Underwriter specifically for use in
the preparation of the documents referred to in the foregoing indemnity
with respect to the related Series, or (B) any Computational Materials or
ABS Term Sheets (or amendments or supplements thereof) furnished to the
Depositor by the Underwriter pursuant to Section 8 or Section 9 and
incorporated by reference in such Registration Statement or the related
Prospectus or any amendment or supplement thereof (except that no such
indemnity shall be available for any losses, claims, damages or
liabilities, or actions in respect thereof, resulting from any Mortgage
Pool Error, other than a Corrected Mortgage Pool Error). This indemnity
agreement will be in addition to any liability which the Underwriter may
otherwise have. Both AmREIT and the Depositor acknowledge that the
statements set forth in the last paragraph appearing on the cover page of
the related Prospectus Supplement as such statements relate to such
Offered Certificates and the first paragraph (including any table listed
below such paragraph) and the third sentence of the second paragraph
under the heading "Underwriting" in such Prospectus Supplement as such
statements relate to such Offered Certificates constitute the only
information furnished in writing by or on behalf of the Underwriter for
inclusion in the related Prospectus (other than any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof)
delivered to prospective investors and furnished to the Depositor by the
Underwriter) and the Underwriter confirms that such statements are
correct.
(c) Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties.
Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any
legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion of
legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall
not be liable for the expenses of more than one separate counsel approved
by the indemnified party in the case of subparagraph (a) or (b),
representing the indemnified parties under subparagraph (a) or (b), who
are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement
of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in paragraph (a) or (b)
of this Section 7 is due in accordance with its terms but is for any
reason held by a court to be unavailable from AmREIT and the Depositor,
on the one hand, or the Underwriter on the other hand, on grounds of
policy or otherwise, or if the indemnified party failed to give notice
under paragraph (c) of this Section 7 in respect of a claim otherwise
subject to indemnification in accordance with paragraph (a) or (b) of
this Section 7, the indemnifying party shall contribute to the aggregate
losses, claims, damages and liabilities (including legal and other
expenses reasonably incurred in connection with investigating or
defending same) to which the indemnified party may be subject in such
proportion so that the Underwriter is responsible for that portion
represented by the difference between the proceeds to the Depositor in
respect of the Offered Certificates appearing on the cover page of the
Prospectus Supplement for the related Series and the total proceeds
received by the Underwriter from the sale of such Offered Certificates
(the "Underwriting Discount"), and AmREIT and the Depositor are
responsible for the balance; provided, however, that in no case shall the
Underwriter be responsible for any amount in excess of such Underwriting
Discount applicable to the Offered Certificates purchased by the
Underwriter pursuant to this Agreement and the related Terms Agreement.
(e) Notwithstanding anything to the contrary in this Section 7,
no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person who controls the Underwriter
within the meaning of either the Act or the Exchange Act shall have the
same rights to contribution as the Underwriter, and each person who
controls AmREIT or the Depositor within the meaning of either the Act or
the Exchange Act, shall have the same rights to contribution as AmREIT
and the Depositor, subject in each case to the immediately preceding
sentence of this paragraph (e).
8. Computational Materials and Structural Term Sheets. (a) Not later
than 2:00 p.m., New York time, on the business day before the date on which
the Current Report relating to the Offered Certificates of a Series is
required to be filed by the Depositor with the Commission pursuant to Section
5(b) hereof, the Underwriter shall deliver to the Depositor or its counsel
five complete copies of, or shall transmit electronically to the Depositor or
its counsel, all materials provided by the Underwriter to prospective
investors in such Offered Certificates that constitute (i) "Computational
Materials" within the meaning of the no-action letter dated May 20, 1994
issued by the Division of Corporation Finance of the Commission to Xxxxxx,
Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated, and
Xxxxxx Structured Asset Corporation and the no-action letter dated May 27,
1994 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Xxxxxx Letters"), the filing of
which material is a condition of the relief granted in such letter (such
materials being the "Computational Materials"), and (ii) "Structural Term
Sheets" within the meaning of the no-action letter dated February 17, 1995
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter"), the filing of which material is a
condition of the relief granted in such letter (such materials being the
"Structural Term Sheets"). Each delivery of Computational Materials and
Structural Term Sheets to the Depositor pursuant to this paragraph (a) shall
be effected by delivering five copies of such materials, or by transmitting
electronically such materials, to counsel for the Depositor on behalf of the
Depositor at the address specified by such counsel and one copy of such
materials to the Depositor.
(b) The Underwriter represents and warrants to and agrees with the
Depositor, as of the date of the related Terms Agreement and as of the
Closing Date, that:
(i) the Computational Materials furnished to the Depositor
pursuant to Section 8(a) constitute (either in original, aggregated
or consolidated form) all of the materials furnished to prospective
investors by the Underwriter prior to the time of delivery thereof
to the Depositor that are required to be filed with the Commission
with respect to the related Offered Certificates in accordance with
the Xxxxxx Letters, and such Computational Materials comply with the
requirements of the Xxxxxx Letters; and
(ii) the Structural Term Sheets furnished to the Depositor
pursuant to Section 8(a) constitute all of the materials furnished
to prospective investors by the Underwriter prior to the time of
delivery thereof to the Depositor that are required to be filed with
the Commission as "Structural Term Sheets" with respect to the
related Offered Certificates in accordance with the PSA Letter, and
such Structural Term Sheets comply with the requirements of the PSA
Letter.
(c) The Underwriter shall cause such firm of certified public
accountants as it shall select to furnish to the Depositor a letter,
dated as of the date on which the Underwriter delivers any Computational
Materials (which term shall be deemed to include, for purposes of this
paragraph (c), calculated statistical information delivered to
prospective investors in the form of a Structural Term Sheet) to the
Depositor pursuant to Section 8(a), in form and substance satisfactory to
the Depositor, stating in effect that they have verified the mathematical
accuracy of any calculations, or such portion or sample thereof as is
specified in such letter, performed by the Underwriter and set forth in
such Computational Materials.
(d) If, at any time when a prospectus relating to the Offered
Certificates of a Series is required to be delivered under the Act, it
shall be necessary to amend or supplement the related Prospectus as a
result of an untrue statement of a material fact contained in any
Computational Materials or Structural Term Sheets provided by the
Underwriter pursuant to this Section 8 or the omission to state therein a
material fact required, when considered in conjunction with the related
Prospectus and Prospectus Supplement, to be stated therein or necessary
to make the statements therein, when read in conjunction with the related
Prospectus and Prospectus Supplement, not misleading, or if it shall be
necessary to amend or supplement any Current Report relating to any
Computational Materials or Structural Term Sheets to comply with the Act
or the rules thereunder, the Underwriter promptly will prepare and
furnish to the Depositor for filing with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance.
9. Collateral Term Sheets. (a) Not later than 2:00 p.m., New York
time, on the business day immediately following the date on which any
"Collateral Term Sheet" (within the meaning of the PSA letter) was first
delivered to a prospective investor in such Offered Certificates, the
Underwriter shall deliver (or shall transmit electronically) to the Depositor
or its counsel copies of all materials provided by the Underwriter to
prospective investors in the Offered Certificates that constitute "Collateral
Term Sheets." Each delivery of a Collateral Term Sheet to the Depositor
pursuant to this paragraph (a) shall be effected by delivering (or
transmitting electronically) four copies of such materials to counsel for the
Depositor on behalf of the Depositor at the address specified by such counsel
and one copy of such materials to the Depositor. (Collateral Term Sheets and
Structural Term Sheets are, together, referred to herein as "ABS Term
Sheets.") At the time of each such delivery, the Underwriter shall indicate in
writing that the materials being delivered constitute Collateral Term Sheets,
and, if there has been any prior such delivery with respect to the related
Series, shall indicate whether such materials differ in any material respect
from any Collateral Term Sheets previously delivered to the Depositor with
respect to such Series pursuant to this Section 9(a) as a result of the
occurrence of a material change in the characteristics of the related Mortgage
Loans.
(b) The Underwriter represents and warrants to and agrees with the
Depositor as of the date of the related Terms Agreement and as of the
Closing Date, that the Collateral Term Sheets furnished to the Depositor
pursuant to Section 9(a) constitute all of the materials furnished to
prospective investors by the Underwriter prior to time of delivery
thereof to the Depositor that are required to be filed with the
Commission as "Collateral Term Sheets" with respect to the related
Offered Certificates in accordance with the PSA Letter, and such
Collateral Term Sheets comply with the requirements of the PSA Letter;
(c) The Underwriter may cause such firm of certified Public
Accountants as it shall select to prepare a letter, dated as of the date
on which the Underwriter delivers any Collateral Term Sheets to the
depositor pursuant to Section 9(a) (and, in the event that the
Underwriter does so, it shall cause the Depositor to be an addressee of
such letter), stating in effect that they have verified the mathematical
accuracy of any calculations, or such portion or sample thereof as is
specified in such letter, performed by the Underwriter and set forth in
such Collateral Term Sheets.
(d) If, at any time when a prospectus relating to the Offered
Certificates of a Series is required to be delivered under the Act, it
shall be necessary to amend or supplement the related Prospectus as a
result of an untrue statement of a material fact contained in any
Collateral Term Sheets provided by the Underwriter pursuant to this
Section 9 or the omission to state therein a material fact required, when
considered in conjunction with the related Prospectus and Prospectus
Supplement, to be stated therein or necessary to make the statements
therein, when read in conjunction with the related Prospectus and
Prospectus Supplement, not misleading, or if it shall be necessary to
amend or supplement any Current Report relating to any Collateral Term
Sheets to comply with the Act or the rules thereunder, the Underwriter
promptly will prepare and furnish to the Depositor for filing with the
Commission, and the Depositor shall promptly file therewith, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance.
10. Default of Underwriters. If any Underwriter or Underwriters
participating in an offering of Certificates default in their obligations to
purchase Certificates hereunder and under the Terms Agreement and the
aggregate principal amount of such Certificates which such defaulting
Underwriter or Underwriters agreed, but failed, to purchase does not exceed
10% of the total principal amount of the Certificates set forth in such Terms
Agreement, you may make arrangements satisfactory to the Depositor for the
purchase of such Certificates by other persons, including any of the
Underwriters participating in such offering, but if no such arrangements are
made within a period agreed to by you and the Depositor after the applicable
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective total commitments hereunder and under such
Terms Agreement, to purchase the Certificate which such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of Certificates with respect to
which such default or defaults occur is more than 10% of the total principal
amount of the Certificates set forth in such Terms Agreement and arrangements
satisfactory to you and the Depositor for the purchase of such Certificates by
other persons are not made within such period agreed to by you and the
Depositor after such default, this Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Depositor, except as
provided in Section 11. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
11. Termination. You, as Representative of the Underwriters named in
any Terms Agreement, may also terminate such Terms Agreement, immediately upon
notice to the Depositor, at any time at or prior to the applicable Closing
Date, (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 Depositor or the Trust Fund, 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 outbreak 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 judgment, impracticable to market the Certificates or
enforce contracts for the sale of the Certificates, or (iii) if trading
generally on either the New York Stock Exchange or the American Stock Exchange
has been suspended, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices for securities have been required, by either of
said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either federal, New
York or California authorities.
12. Representations and Indemnities to Survive Delivery. The
agreements, representations, warranties, indemnities and other statements of
the Depositor and AmREIT or their respective officers and of the Underwriter
set forth in or made pursuant to this Agreement and the related Terms
Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter, AmREIT, the Depositor
or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the related
Offered Certificates. The provisions of Section 7 hereof shall survive the
termination or cancellation of this Agreement and the related Terms Agreement.
13. Successors. This Agreement and the related Terms Agreement will
inure to the benefit of and be binding upon the parties hereto and thereto and
their respective successors and the officers, directors and controlling
persons referred to in Section 7 hereof, and their successors and assigns, and
no other person will have any right or obligation hereunder or thereunder. No
purchaser of any Offered Certificate from the Underwriter shall be deemed a
successor or assign by reason of such purchase.
14. APPLICABLE LAW. THIS AGREEMENT AND THE RELATED TERMS AGREEMENT
WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
15. Miscellaneous. This Agreement, as supplemented by the related
Terms Agreement, supersedes all prior and contemporaneous agreements and
understandings relating to the subject matter hereof. This Agreement and the
related Terms Agreement or any term of each may not be changed, waived,
discharged or terminated except by an affirmative written agreement made by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement and the related Terms
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof or thereof.
16. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter, will be delivered
to it at the address first above written; or if sent to the Depositor, will be
delivered to American Residential Eagle, Inc., 000 Xxxxxx Xxxx Xxxxxx, Xxxxx
000, Xxx Xxx, Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxx, Chief Financial
Officer.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Depositor and the Underwriter.
Very truly yours,
AMERICAN RESIDENTIAL EAGLE, INC.
By:______________________________________
Name:
Title:
AMERICAN RESIDENTIAL INVESTMENT TRUST, INC.
By:______________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
XXXXXX BROTHERS INC.
acting on behalf of itself and, if applicable, as the Representative of the
several Underwriters named in the Terms Agreement.
By:_________________________
Name:
Title:
EXHIBIT A
AMERICAN RESIDENTIAL EAGLE, INC.
MORTGAGE-BACKED CERTIFICATES
SERIES ____-__
TERMS AGREEMENT
(to Standard Terms Underwriting Agreement,
dated __, 199_
between the Depositor and the Underwriter)
American Residential Eagle, Inc. New York, New York
American Residential Investment Trust Inc. [Date]
000 Xxxxxx Xxxx Xxxxxx
Xxxxx 000
Xxx Xxx, Xxxxxxxxxx 00000
[UNDERWRITER] (the "Underwriter") agrees, subject to the terms and
provisions herein and of the captioned Underwriting Agreement (the
"Underwriting Agreement"), to purchase such Classes of Series ____-__
Certificates specified in Section 2(a) hereof (the "Offered Certificates").
This letter supplements and modifies the Underwriting Agreement solely as it
relates to the purchase and sale of the Offered Certificates described below.
The Series ____-__ Certificates are registered with the Securities and
Exchange Commission by means of an effective Registration Statement (No.
333-47311). Capitalized terms used and not defined herein have the meanings
given them in the Underwriting Agreement.
Section 1. The Mortgage Pool: The Series ____-__ Certificates shall
evidence the entire beneficial ownership interest in a Collateralized Mortgage
Bond (the "Underlying Bond") secured by a mortgage pool (the "Mortgage Pool")
of conventional, [fixed rate], [adjustable rate] fully amortizing one- to
four-family residential mortgage loans (the "Mortgage Loans") having the
following characteristics as of ________ __, ____ (the "Cut-off Date"):
(a) Terms of the Underlying Bond: [ ].
(b) Aggregate Principal Amount of the Mortgage Pool: $[
_____________ ] aggregate principal balance as of the Cut-off Date,
subject to [an upward or downward variance of up to [ ____ ]%, the
precise aggregate principal balance to be determined by the Depositor][a
permitted variance such that the aggregate Scheduled Principal Balance
thereof will be not less than $[ ______ ] or greater than $[ ]].
(c) Original Terms to Maturity: The original term to maturity of
each Mortgage Loan included in the Mortgage Pool shall be between ___ and
___ years.
Section 2. The Certificates: The Offered Certificates shall be
issued as follows:
(a) Classes: The Offered Certificates shall be issued with the
following Class designations, interest rates and principal balances,
subject in the aggregate to the variance referred to in Section
1(a)[and, as to any particular Class, to an upward or downward
variance of up to [ ]%]:
Principal Interest Class Purchase
Class Balance Rate Price Percentage
(b) The Offered Certificates shall have such other characteristics
as described in the related Prospectus.
Section 3. Terms of Sale of Offered Certificates: The Depositor
agrees to sell to [______________________________ (the "Underwriter[s]")] and
[and ___________________ each] agree[s][, severally and not jointly,] to
purchase from the Depositor the Offered Certificates in the principal amounts
and prices set forth beneath their [respective] name[s] on Schedule 1. The
purchase price for each class of the Offered Certificates shall be the
applicable Purchase Price Percentage set forth above plus accrued interest at
the applicable initial interest rate per annum from and including the Cut-off
Date up to, but not including, the Closing Date.
[The Underwriter[s] will offer the Offered Certificates to the
public from time to time in negotiated transactions or otherwise at varying
prices to be determined at the time of sale.]
Section 4. Required Ratings:The Offered Certificates shall have
received Required Ratings of at least [ ] from [ ].
Section 5. Tax Treatment: [One or more elections will be made to
treat the assets of the Trust Fund as a FASIT.] [The Trust Fund will be
treated as a "grantor trust" for federal income tax purposes.]
Section 6. Closing Date: 10:00 a.m., New York time, on or about ,
19__. On the Closing Date, the Depositor will deliver the Offered Certificates
to the Underwriter against payment therefor.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Underwriter and the Depositor.
Very truly yours,
[UNDERWRITER]
By:________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
AMERICAN RESIDENTIAL EAGLE, INC.
By:_________________________________
Name:
Title:
AMERICAN RESIDENTIAL INVESTMENT TRUST, INC..
By:_________________________________
Name:
Title: