Exhibit 1.1
XXXXX ASSET SECURITIZATION, INC.
LUMINENT MORTGAGE TRUST 2006-6
MORTGAGE-BACKED CERTIFICATES, SERIES 2006-6
UNDERWRITING AGREEMENT
September 28, 2006
Barclays Capital, Inc.
as Representative of the several Underwriters
c/o Barclays Capital
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Xxxxx Asset Securitization, Inc., a Delaware corporation (the
"COMPANY"), confirms its agreement to sell to you (the "REPRESENTATIVE") and the
several underwriters listed on Schedule I hereto (collectively, the
"UNDERWRITERS"), all of Luminent Mortgage Trust 2006-6 (the "TRUST"),
Mortgage-Backed Certificates, Series 2006-6, Class A-1, Class X-0X, Xxxxx X-0X,
Xxxxx X-0, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-7 and
Class B-8 (collectively, the "UNDERWRITTEN SECURITIES"), and the purchase by the
Underwriters, acting severally and not jointly, of their respective Certificate
Principal Balances of the Underwritten Securities set forth opposite their names
in Schedule II hereto. The Underwritten Securities, together with the Class B-9,
Class C, Class R and Class RX Certificates not sold to the Underwriters, will
evidence the entire beneficial interest in a pool of adjustable rate one- to
four-family residential mortgage loans (the "MORTGAGE LOANS") as described in
the Prospectus Supplement (as hereinafter defined) acquired by the Company from
Maia Mortgage Finance Statutory Trust, a Maryland business trust (the "SELLER").
The Certificates will be issued pursuant to a Pooling Agreement dated
as of September 1, 2006 (the "POOLING AGREEMENT"), among the Company, the
Seller, Xxxxx Fargo Bank, N.A., as master servicer (the "MASTER SERVICER") and
securities administrator (the "SECURITIES ADMINISTRATOR"), and HSBC Bank USA,
National Association, as trustee (the "TRUSTEE"). The Mortgage Loans will be
serviced by a number of servicers pursuant to various servicing agreements (the
"SERVICING AGREEMENTS") assigned to the Trust. Custody of the Mortgage Loans
will be pursuant to a custody agreement (the "CUSTODY AGREEMENT") dated as of
September 1, 2006 by and among the Company, the Servicers, the Trustee, the
Master Servicer, the Securities Administrator and Xxxxx Fargo Bank, N.A., as
custodian. The Supplemental Interest Trustee, on behalf of the Trust and the
Class A-2A Certificateholders, will also enter a cap agreement with Barclays
Bank PLC, as the cap provider (the "CAP Provider"), dated as of September 28,
2006 (the "CAP AGREEMENT").
At or prior to the time when sales to investors of the Certificates
were first made (the "TIME OF Sale"), the Company had prepared a preliminary
prospectus, dated September 27, 2006, for distribution to prospective investors
(the information contained therein, together with information regarding the
price and interest rate of the Certificates, the "TIME OF SALE INFORMATION").
If, subsequent to the Time of Sale, the Company or any Underwriter determines
that such information included an untrue statement of material fact or omitted
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading and
have terminated their old purchase contracts and entered into new purchase
contracts with purchasers of the Certificates, then "TIME OF SALE INFORMATION"
will refer to the information available to purchasers at the time of entry into
the first such new purchase contract, including any information that corrects
such material misstatements or omissions and "TIME OF SALE" will refer to the
time and date on which such new purchase contracts were entered into.
This underwriting agreement (the "AGREEMENT"), the Pooling Agreement,
the Custodial Agreement, the Servicing Agreement and the Cap Agreement are
sometimes referred to herein collectively as the "TRANSACTION AGREEMENTS." The
Underwritten Securities will be issued in minimum denominations and will have
the terms set forth in the Pooling Agreement. Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Pooling Agreement.
1. Representations, Warranties and Covenants. As of the date hereof (or
as of such other date as may be specified in the relevant representation and
warranty), the Company represents and warrants to, and agrees with, each of the
Underwriters as follows:
(a) The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement (No. 333-135084)
on Form S-3 for the registration under the Securities Act of 1933, as
amended (the "ACT"), of Mortgage Pass-Through Certificates and
Mortgage-Backed Notes (issuable in series), including the Certificates,
a copy of which, as amended to the date hereof, has heretofore been
delivered to the Underwriters. All conditions for the use of Form S-3
under the Act have been satisfied. Such registration statement,
including the exhibits thereto, as amended to the date of this
Agreement, is hereinafter called the "REGISTRATION STATEMENT"; the
prospectus first required to be filed to satisfy the condition set
forth in Rule 172(c)(3) and pursuant to Rule 424(b) under the Act is
hereinafter called the "BASE PROSPECTUS"; and such supplement to the
Base Prospectus, in the form required to be filed to satisfy the
condition set forth in Rule 172(c)(3) and pursuant to Rule 424(b) under
the Act, is hereinafter called the "PROSPECTUS SUPPLEMENT" and,
collectively with the Base Prospectus, the "PROSPECTUS." Any reference
herein to the Registration Statement, the Base Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), on or before the date of this Agreement, or the issue
date of the Base Prospectus or the Prospectus, as the case may be; and
any reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement, the Base Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or
the issue date of the Base Prospectus or the Prospectus, as the case
may be, and deemed to be incorporated therein by reference. The
Registration Statement has been declared effective by the Commission
under the Act; no order suspending the effectiveness of the
Registration Statement has been issued by the Commission and no
proceeding for that purpose has been initiated or, to the best
knowledge of the Company, threatened by the Commission;
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(b) When the Prospectus is first filed pursuant to Rule 424
under the Act, when, prior to the Closing Date, any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when
any supplement to the Prospectus is filed with the Commission and at
the Closing Date, (i) the Registration Statement, as amended as of any
such time, and the Prospectus, as amended or supplemented as of any
such time, will comply in all material respects with the Act and the
respective rules thereunder, (ii) the Registration Statement, as
amended as of any such time, will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, and (iii) the Prospectus and any static pool information
referred to in the Time of Sale Information and the Prospectus, as
amended or supplemented as of any such time, under the caption "STATIC
POOL INFORMATION" but deemed to be excluded from the Registration
Statement and the Prospectus pursuant to Item 1105(d) of Regulation AB
issued under the Act (the "STATIC POOL INFORMATION"), will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that neither the Company nor
the Seller makes any representations or warranties as to the
information contained in or omitted from the Registration Statement or
the Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing
to the Company through the Representative specifically for use in
connection with the preparation of the Registration Statement or the
Prospectus. The parties agree that such information consists solely of
the information about the distribution and marketing of the
Certificates under the caption "Method of Distribution" in the
Prospectus Supplement (the "UNDERWRITING INFORMATION");
(c) The Time of Sale Information, at the Time of Sale did not,
and at the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representation and warranty with respect to the
Underwriting Information contained in or omitted from the Time of Sale
Information or any amendment thereof or supplement thereto;
(d) Other than as set forth or contemplated in the Prospectus
and the Time of Sale Information, since the date as of which
information is given in the Registration Statement, the Time of Sale
Information or the Prospectus, there has not been any material adverse
change or any development involving a prospective material adverse
change, in or affecting the business, properties, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and the Seller;
(e) The Company has been duly formed and is validly existing
as a corporation in good standing under the laws of the State of
Delaware. The Seller has been duly formed and is validly existing as a
business trust under the laws of the State of Maryland. Each of the
Company and the Seller has the requisite organizational power to own
its properties and to conduct its business as presently conducted by
it; and each of the Company and the Seller is duly qualified to do
business as a foreign corporation in good standing and has all
necessary certificates, licenses and permits in all jurisdictions in
which its ownership of property or the conduct of its business as
presently conducted by it requires such qualification;
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(f) As of the Closing Date, the Certificates will conform in
all material respects to the description thereof contained in the
Prospectus and the Time of Sale Information, and the representations
and warranties of the Company in the Pooling Agreement will be true and
correct in all material respects;
(g) The Certificates, when validly authenticated, issued and
delivered in accordance with the Pooling Agreement, will be duly and
validly issued and outstanding and entitled to the benefits of the
Pooling Agreement, and immediately prior to the delivery of the
Certificates to each Underwriter, the Company will own the
Certificates, and upon such delivery, such Underwriter will acquire
title thereto, free and clear of any lien, pledge, encumbrance or other
security interest other than one created or granted by such
Underwriter;
(h) This Agreement has been duly authorized, executed and
delivered by the Company and the Seller and, as of the Closing Date,
the Transaction Agreements to which the Company or the Seller is a
party will have been duly authorized, executed and delivered by the
Company or the Company, as applicable, and will conform in all material
respects to the description thereof contained in the Prospectus and the
Time of Sale Information, and assuming the valid execution thereof by
the other parties thereto, each Transaction Agreement will constitute a
legal, valid and binding agreement of the Company and the Seller, as
applicable, enforceable in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting the enforcement of creditors' rights and
by general equity principles;
(i) As of the Closing Date, the Transaction Agreements to
which the Company or the Seller is a party will conform in all material
respects to the description thereof contained in the Prospectus and the
Time of Sale Information;
(j) The execution, delivery and performance by the Company and
the Seller of each of the Transaction Agreements, the issuance and sale
of the Certificates and compliance by the Company and the Seller with
the terms thereof and the consummation of the transactions contemplated
by the Transaction Documents will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or the
Seller, as applicable, pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or the Seller is a party or by which the Company or the Seller
is bound or to which any of the property or assets of the Company or
the Seller is subject; (ii) result in any violation of the provisions
of the charter, by-laws or similar organizational documents of the
Company or the Seller; or (iii) result in the violation of any law or
statute or any judgment, order or regulation of any governmental
authority, except, in the case of clauses (i) and (iii) above, for any
such conflict, breach or violation that would not, individually or in
the aggregate, have a material adverse effect;
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(k) No filing or registration with, notice to, or consent,
approval, authorization or order or other action of any court or
governmental authority or agency is required for the consummation by
the Company or the Seller of the transactions contemplated by the
Transaction Agreements (other than as required under state securities
laws or Blue Sky laws, as to which no representations and warranties
are made by the Company), except such as have been, or will have been,
obtained under the Act prior to the Closing Date, any filings under the
Uniform Commercial Code, and any recordations of the assignment of the
Mortgage Loans to the Trustee or, if applicable, to Mortgage Electronic
Registration Systems, Inc. ("MERS") on behalf of the Trustee, pursuant
to the Pooling Agreement;
(l) There is no action, suit or proceeding before or by any
court, administrative or governmental agency, or other tribunal,
domestic or foreign, now pending to which the Company or the Seller is
a party, or, to the best of the Company's knowledge, threatened against
the Company or the Seller, which could reasonably result individually
or in the aggregate in any material adverse change in the condition
(financial or otherwise), earnings, affairs, regulatory situation or
business prospects of the Company or the Seller, or could reasonably
interfere with or materially and adversely affect the consummation of
the transactions contemplated in the Transaction Agreements;
(m) Upon the execution and delivery of the Pooling Agreement,
(i) the Seller will own the Mortgage Loans being sold to the Company,
free and clear of any lien, mortgage, pledge, charge, encumbrance,
adverse claim or other security interest except to the extent permitted
in the Pooling Agreement (collectively, "LIENS"); (ii) the Company will
own the Mortgage Loans being sold to the Trust, free of Liens, or will
have a valid, perfected, first-priority security interest therein, free
of Liens;
(n) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of the Transaction
Agreements and the Certificates have been or will be paid by the
Company or the Seller on or prior to the Closing Date, except for fees
for recording assignments of Mortgage Loans to the Trustee or, if
applicable, to MERS on behalf of the Trustee, pursuant to the Pooling
Agreement that have not yet been completed, which fees will be paid by
the Company or the Seller in accordance with the Pooling Agreement;
(o) The Company is not an "investment company" or entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended;
(p) Since the respective dates as of which information is
given in the Prospectus, there has not been any material adverse change
in the general affairs, management, financial condition, or results of
operations of the Company, otherwise than as set forth or contemplated
in the Prospectus, as supplemented or amended as of the Closing Date.
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(q) The representations and warranties of the Company and the
Seller contained in the Transaction Documents are true and correct in
all material respects;
(r) Other than the Prospectus, the Company (including its
agents and representatives other than the Underwriters) has not made,
used, prepared, authorized, approved or referred to and will not make,
use, prepare, authorize, approve or refer to any "written
communication" (as defined in Rule 405 under the Act) that constitutes
an offer to sell or solicitation of an offer to buy the Certificates
other than (i) information included in the Time of Sale Information,
(ii) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Act or Rule 134 under the Act or (iii) other written
communication approved in writing in advance by the Representative;
(s) Any Issuer Free Writing Prospectus (as defined in Section
4(f)(i)) included in the Time of Sale Information complied in all
material respects with the Act and has been, or will be filed in
accordance with Rule 433(d) under the Act (to the extent required
thereby);
(t) The Company is not, and on the date on which the first
bona fide offer of the Certificates is made will not be, an "ineligible
issuer," as defined in Rule 405 under the Act;
(u) As of the Closing Date, this Agreement and the other
Transaction Agreements conform in all material respects to the
descriptions thereof contained in the Registration Statement and
Prospectus;
(v) On the Closing Date, the Trust will be a New York common
law trust;
(w) It is not necessary to qualify the Pooling Agreement under
the Trust Indenture Act of 1939, as amended.
2. Purchase and Sale; Payment and Delivery.
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company agrees
to sell to each Underwriter and each Underwriter agrees, severally and
not jointly, to purchase from the Company, the Underwritten Securities
at the respective prices set forth in Schedule II hereto.
(b) The Company understands that the Underwriters intend to
make a public offering of their respective portions of the Underwritten
Securities as soon after the effectiveness of this Agreement as in the
judgment of the Representative is advisable, and initially to offer the
Underwritten Securities on the terms set forth in the Time of Sale
Information and the Prospectus. The Company acknowledges and agrees
that the Underwriters may offer and sell the Underwritten Securities to
or through any affiliate of an Underwriter and that any such affiliate
may offer and sell any Underwritten Securities purchased by it to or
through any Underwriter.
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(c) The Underwritten Securities to be purchased by each
Underwriter hereunder, in book entry form, and in such authorized
denominations and registered in such names as the Representative shall
request, shall be delivered by or on behalf of the Company to the
Representative through the facilities of The Depository Trust Company
("DTC") for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified to the
Representative by the Company upon at least forty-eight hours' prior
notice. The Company will cause the certificates representing the
Underwritten Securities to be made available for checking and packaging
at least twenty-four hours prior to the Closing Date (as defined below)
with respect thereto at the office of the Representative, 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at the office of DTC or
its designated custodian, as the case may be. The time and date of such
delivery and payment shall be 10:00 a.m., New York City time, on the
Closing Date (unless another time and date shall be agreed to by the
Representative and the Company). The time and date at which such
payment and delivery are actually made is hereinafter sometimes called
the "CLOSING DATE."
3. Offering by Underwriters; Offering Communications; Free Writing
Prospectuses.
(a) It is understood by the parties hereto that the
Underwriters propose to offer the Underwritten Securities for sale to
the public as set forth in the Prospectus, and the Underwriters agree
that all such offers and sales shall be made in compliance with all
applicable laws and regulations.
(b) Each Underwriter further agrees that, on or prior to the
Closing Date, it shall provide the Company with a certificate, setting
forth (a) in the case of each class of Certificates, (i) if less than
10% of the Certificate Principal Balance of such class of Certificates
has been sold to the public as of such date, the fair market value (but
not less than zero) of such class of Certificates as of the Closing
Date, or (ii) if 10% or more of such class of Certificates has been
sold to the public as of such date but no single price is paid for at
least 10% of the aggregate principal balance of such class of
Certificates, then the weighted average price at which the Certificates
of such class were sold, expressed as a percentage of the Certificate
Principal Balance of such class of Certificates sold, or (b) the first
single price at which at least 10% of the Certificate Principal Balance
of such class of Certificates was sold to the public, (c) the
prepayment assumption used in pricing each class of Certificates, and
(d) such other information as to matters of fact as the Company may
reasonably request to enable it to comply with its reporting
requirements with respect to each class of Certificates to the extent
such information can in the good faith judgment of such Underwriter be
determined by it.
(c) The Underwriters shall convey or deliver any written
communication to any person (including through Bloomberg) in connection
with the initial offering of the Underwritten Securities, only if such
written communication is preceded or accompanied by a prospectus
satisfying the requirements of Section 10(a) of the Act or only if such
written communication (i) is made in reliance on Rule 134 under the
Act, (ii) constitutes a prospectus satisfying the requirements of Rule
430B under the Act or (iii) constitutes a "free writing prospectus," as
defined in Rule 405 under the Act (a "FREE WRITING PROSPECTUS").
Without the prior written consent of the Company (which consent may be
withheld for any reason), the Underwriters shall not convey or deliver
in connection with the initial offering of the Certificates any "ABS
informational and computational material," as defined in Item 1101(a)
of Regulation AB under the Act and the Exchange Act ("ABS INFORMATIONAL
AND COMPUTATIONAL MATERIAL"), in reliance upon Rules 167 and 426 under
the Act.
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(d) (i) Each Underwriter shall deliver to the Company, no
later than two business days prior to the date of first use thereof,
(A) any Free Writing Prospectus prepared by or on behalf of such
Underwriter that contains any "issuer information," as defined in Rule
433(h)(2) under the Act and footnote 271 of the Commission's Securities
Offering Reform Release No. 33-8591 ("ISSUER INFORMATION"), and (B) any
Free Writing Prospectus or portion thereof that contains only a
description of the final terms of the Underwritten Securities.
(ii) Notwithstanding the provisions of Section 3(d)(i), any Free
Writing Prospectus described therein that contains only ABS
Informational and Computational Material may be delivered by an
Underwriter to the Company not later than the later of (a) two business
days prior to the due date for filing of the Prospectus pursuant to
Rule 424(b) under the Act or (b) the date of first use of such Free
Writing Prospectus.
(e) Each Underwriter represents and warrants to the Company
severally and not jointly that the Free Writing Prospectuses to be
furnished to the Company by such Underwriter pursuant to Section
3(d)(i) or (ii) will constitute all Free Writing Prospectuses of the
type described therein that were furnished to prospective investors by
such Underwriter in connection with its offer and sale of the
Certificates. Each Underwriter further represents and warrants that it
has not delivered any Free Writing Prospectuses to prospective
investors other than the Free Writing Prospectus dated September __,
2006 and a Term Sheet dated September __, 2006.
(f) The Company agrees to file with the Commission the
following:
(i) Any Free Writing Prospectus that constitutes an
"issuer free writing prospectus," as defined in Rule 433(h)(1)
under the Act (an "ISSUER FREE WRITING PROSPECTUS");
(ii) Any Free Writing Prospectus or portion thereof
delivered by an Underwriter to the Company pursuant to Section
3(d) hereof; and
(iii) Any Free Writing Prospectus for which the
Company or any person acting on its behalf provided,
authorized or approved information that is prepared and
published or disseminated by a person unaffiliated with the
Company or any other offering participant that is in the
business of publishing, radio or television broadcasting or
otherwise disseminating communications.
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(g) Any Free Writing Prospectus required to be filed pursuant
to Section 3(f) by the Company shall be filed with the Commission not
later than the date of first use of the Free Writing Prospectus, except
that:
(i) any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the
final terms of the Certificates may be filed by the Company
within two days of the later of the date such final terms have
been established for all classes of Certificates and the date
of first use;
(ii) any Free Writing Prospectus or portion thereof
required to be filed that contains only ABS Informational and
Computational Material may be filed by the Company with the
Commission not later than the later of the due date for filing
the final Prospectus relating to the Certificates pursuant to
Rule 424(b) under the Act or two business days after the first
use of such Free Writing Prospectus;
(iii) any Free Writing Prospectus required to be
filed pursuant to Section 3(f)(iii) may, if no payment has
been made or consideration has been given by or on behalf of
the Company for the Free Writing Prospectus or its
dissemination, be filed by the Company with the Commission not
later than four business days after the Company becomes aware
of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A)
Issuer Information contained in any Free Writing Prospectus of
an offering participant other than the Trust, if such
information is included or incorporated by reference in a
prospectus or Free Writing Prospectus previously filed with
the Commission that relates to the offering of the
Certificates, or (B) any Free Writing Prospectus or portion
thereof that contains a description of the Certificates or the
offering of the Certificates which does not reflect the final
terms thereof.
(h) Each Underwriter shall provide to the Company for filing
with the Commission any Free Writing Prospectus that is used or
referred to by it and distributed by or on behalf of such Underwriter
in a manner reasonably designed to lead to its broad, unrestricted
dissemination not later than the date of the first use of such Free
Writing Prospectus.
(i) Notwithstanding the provisions of Section 3(h), each
Underwriter shall provide to the Company for filing with the Commission
any Free Writing Prospectus for which such Underwriter or any person
acting on its behalf provided, authorized or approved information that
is prepared and published or disseminated by a person unaffiliated with
the Company or any other offering participant that is in the business
of publishing, radio or television broadcasting or otherwise
disseminating written communications and for which no payment was made
or consideration given by or on behalf of the Company or any other
offering participant, not later than four business days after such
Underwriter becomes aware of the publication, radio or television
broadcast or other dissemination of the Free Writing Prospectus.
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(j) Notwithstanding the provisions of Sections 3(f) and 3(i),
neither the Company nor any Underwriter shall be required to file any
Free Writing Prospectus that does not contain substantive changes from
or additions to a Free Writing Prospectus previously filed with the
Commission.
(k) The Company and each Underwriter each agree that each Free
Writing Prospectus prepared by such Underwriter shall contain the
following legend, or a substantially similar legend that complies with
Rule 433 under the Act:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents
the depositor has filed with the SEC for more complete
information about the issuer and this offering. You may get
these documents for free by visiting XXXXX on the SEC Web site
at xxx.xxx.xxx. Alternatively, the depositor, any underwriter
or any dealer participating in the offering will arrange to
send you the prospectus if you request it by calling toll-free
0-000-000-0000, extension 2663.
The Company and each Underwriter each agree that any Free Writing
Prospectus prepared by such Underwriter and that is not an Issuer Free
Writing Prospectus or that does not contain Issuer Information shall
also contain the following legend:
Neither the issuer of the securities nor any of its affiliates
prepared, provided, approved or verified any statistical or
numerical information presented herein, although that
information may be based in part on loan level data provided
by the issuer or its affiliates.
(l) In the event that the Company becomes aware that, as of
the Time of Sale, any Issuer Free Writing Prospectus contains any
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained therein (when read
in conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading (a "DEFECTIVE
ISSUER FREE WRITING PROSPECTUS"), the Company shall notify each
Underwriter within one business day after discovery and the Company
shall, if requested by such Underwriter, prepare and deliver to such
Underwriter a Free Writing Prospectus that corrects the material
misstatement or omission in the Defective Issuer Free Writing
Prospectus (such corrected Issuer Free Writing Prospectus, a "CORRECTED
ISSUER FREE WRITING PROSPECTUS").
(m) In the event that an Underwriter becomes aware that, as of
the Time of Sale, any Free Writing Prospectus prepared by or on behalf
of such Underwriter delivered to an investor in any Underwritten
Securities contained any untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements
contained therein (when read in conjunction with the Time of Sale
Information), in light of the circumstances under which they were made,
not misleading, when considered in conjunction with the Time of Sale
Information (together with a Defective Issuer Free Writing Prospectus,
a "DEFECTIVE FREE WRITING PROSPECTUS"), such Underwriter shall notify
the Company thereof within one business day after discovery.
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(n) Each Underwriter shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was a
Free Writing Prospectus prepared by or on behalf of such
Underwriter, prepare a Free Writing Prospectus which corrects
the material misstatement in or omission from the Defective
Free Writing Prospectus (together with a Corrected Issuer Free
Writing Prospectus, a "CORRECTED FREE WRITING PROSPECTUS");
(ii) deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with such
investor;
(iii) notify such investor in a prominent fashion
that the prior contract of sale with the investor has been
terminated, and of the investor's rights as a result of
termination of such agreement;
(iv) provide such investor with an opportunity to
affirmatively agree to purchase the Underwritten Securities on
the terms described in the Corrected Free Writing Prospectus;
and
(v) comply with any other requirements for
reformation of the original contract of sale with such
investor, as described in Section IV.A.2.c of the Commission's
Securities Offering Reform Release No. 33-8591.
(o) The Company and each Underwriter agree to retain all Free
Writing Prospectuses that they have used and that are not required to
be filed pursuant to this Section 4 for a period of three years
following the initial bona fide offering of the Underwritten
Securities.
(p) Each Underwriter covenants with the Company that after the
Prospectus is available such Underwriter shall not distribute any
written information concerning the Underwritten Securities to a
prospective purchaser of Certificates unless such information is
preceded or accompanied by the Prospectus.
(q) Each Underwriter represents and agrees that:
(i) it has only communicated or caused to be
communicated and will only communicate or cause to be
communicated an invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the
Financial Services and Markets Act) received by it in
connection with the issue or sale of the Underwritten
Securities in circumstances in which Section 21(1) of the
Financial Services and Markets Act does not apply to the
Issuer;
(ii) it has complied and will comply with all
applicable provisions of the Financial Services and Markets
Act with respect to anything done by it in relation to the
Underwritten Securities in, from or otherwise involving the
United Kingdom; and
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(iii) in relation to each Member State of the
European Economic Area which has implemented the Prospectus
Directive (each, a "RELEVANT MEMBER STATE"), with effect from
and including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the "RELEVANT
IMPLEMENTATION DATE") it has not made and will not make an
offer of Underwritten Securities to the public in that
Relevant Member State prior to the publication of a prospectus
in relation to the Underwritten Securities which has been
approved by the competent authority in that Relevant Member
State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in that
Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including
the Relevant Implementation Date, make an offer of the
Underwritten Securities to the public in that Relevant Member
State at any time:
(x) to legal entities which are authorized
or regulated to operate in the financial markets or,
if not so authorized or regulated, whose corporate
purpose is solely to invest in securities;
(y) to any legal entity which has two or
more of (1) an average of at least 250 employees
during the last financial year; (2) a total balance
sheet of more than (euro)43,000,000 and (3) an annual
net turnover of more than (euro)50,000,000, as shown
in its last annual or consolidated accounts; or
(z) in any other circumstances which do not
require the publication by the Issuer of a prospectus
pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an "offer of
securities to the public" in relation to any Underwritten Securities in any
Relevant Member State means the communication in any form and by any means of
sufficient information on the terms of the offer and the securities to be
offered so as to enable an investor to decide to purchase or subscribe the
securities, as the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State and the expression
"Prospectus Directive" means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
4. Certain Covenants.
The Company hereby agrees with each Underwriter:
(a) That the Company shall cooperate with the Representative
and legal counsel for the Underwriters and furnish such information as
may be required to qualify or register the Underwritten Securities for
sale under (or obtain exemptions from the application of) the state
securities or blue sky laws of those jurisdictions designated by the
Representative; that the Company shall comply with such laws and shall
continue such qualifications, registrations and exemptions in effect so
long as required for the distribution of the Underwritten Securities;
provided that the Company shall not be required to qualify as a foreign
corporation or to take any action that would subject it to general
service of process in any such jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign
corporation; and that the Company shall use its best efforts to prevent
the suspension of the qualification or registration of (or any such
exemption relating to) the Underwritten Securities for offering, sale
or trading in any jurisdiction and will advise the Representative
promptly of such suspension or any initiation or threat of any
proceeding for any such purpose, and that in the event of the issuance
of any order suspending such qualification, registration or exemption,
the Company shall use its best efforts to obtain the withdrawal thereof
at the earliest possible moment;
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(b) That if, at the time this Agreement is executed and
delivered, it is necessary for a post-effective amendment to the
Registration Statement to be declared effective before the offering of
the Underwritten Securities may commence, the Company will endeavor to
cause such post-effective amendment to become effective as soon as
possible;
(c) To prepare the Prospectus in a form approved by the
Underwriters and to cause to be transmitted to the Commission for
filing pursuant to Rule 424(b) of the Securities Act Regulations by
means reasonably calculated to result in filing with the Commission
pursuant to such Rule; which Prospectus and Issuer Free Writing
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the version transmitted to the
Commission for filing via XXXXX, except to the extent permitted by
Regulation S-T;
(d) The Company will furnish to each Underwriter, from time to
time during the period when a prospectus relating to the Underwritten
Securities is required to be delivered under the Securities Act, such
number of copies of the Prospectus and each Free Writing Prospectus (as
amended or supplemented) as such Underwriter may reasonably request for
the purposes contemplated by the Securities Act or the Exchange Act or
the respective applicable rules and regulations of the Commission
thereunder;
(e) To furnish a copy of each proposed Free Writing Prospectus
to the Representative and counsel for the Underwriters and obtain the
consent of the Representative prior to referring to, using or filing
with the Commission any Free Writing Prospectus pursuant to Rule 433(d)
under the Securities Act, other than the free writing prospectus
constituting part of the Time of Sale Information;
(f) To comply with the requirements of Section 3 hereof and
Rules 164 and 433 of the Securities Act Regulations applicable to any
Issuer Free Writing Prospectus, including timely filing pursuant to
Rule 433(d) with the Commission (by means reasonably calculated to
result in filing with the Commission pursuant to such Rule), legending
and record keeping, as applicable;
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(g) That, for a period of 90 days after the date of this
Agreement or such earlier date as each Underwriter shall have resold
all of the Underwritten Securities underwritten by it, the Company
shall promptly advise the Representative in writing (i) of the receipt
of any comments of, or requests for additional or supplemental
information from, the Commission or any request by the Commission for
amendments or supplements to the Registration Statement, any Issuer
Free Writing Prospectus or the Prospectus, (ii) of the time and date of
any filing of any post-effective amendment to the Registration
Statement or any amendment or supplement to any Issuer Free Writing
Prospectus or the Prospectus, (iii) of the time and date that any
post-effective amendment to the Registration Statement becomes
effective and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or of any order preventing or
suspending the use of any Issuer Free Writing Prospectus or the
Prospectus; and, if the Commission shall enter any such stop order at
any time, the Company will use its best efforts to obtain the lifting
of such order at the earliest possible moment; the Company shall,
within such period, advise the Representative promptly of any proposal
to prepare, use, authorize, approve or file any amendment or supplement
to the Registration Statement, any Issuer Free Writing Prospectus or
the Prospectus, shall furnish to the Representative for review a copy
of each proposed amendment or supplement a reasonable amount of time
prior to such proposed filing or use, as the case may be, and the
Company will not prepare, use, authorize, approve, refer to or file any
such Issuer Free Writing Prospectus or file any such amendment or
supplement or use any such Prospectus to which the Representative shall
reasonably object; additionally, the Company agrees that it shall
comply with the provisions of Rules 424(b) under the Securities Act and
will use its reasonable efforts to confirm that any filings made by the
Company under such Rule 424(b) were received in a timely manner by the
Commission;
(h) To furnish to the Representative for a period of five
years from the date of this Agreement (i) as soon as available, copies
of all annual, quarterly and current reports or other communications
supplied to holders of Underwritten Securities, (ii) as soon as
practicable after the filing thereof, copies of all reports filed by
the Company with the Commission or any securities exchange and (iii)
such other information as the Representative may reasonably request
regarding the Company;
(i) To advise the Representative promptly of the happening of
any event known to the Company within the time during which a
Prospectus relating to the Underwritten Securities (or in lieu thereof
the notice referred to in Rule 173(a) under the Securities Act
Regulations) is required to be delivered under the Securities Act
Regulations which, in the judgment of the Company or in the reasonable
opinion of the Representative or legal counsel for the Underwriters,
(A) would require the making of any change in the Prospectus or the
Time of Sale Information then being used so that the Prospectus or Time
of Sale Information would not, at the time it is delivered to a
purchaser, include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, (B) as a result of which any
Issuer Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement relating to the
Underwritten Securities, or (C) if it is necessary at any time to amend
or supplement the Prospectus or the Time of Sale Information to comply
with any law and, during such time, to promptly prepare and furnish to
the Underwriters copies of the proposed amendment or supplement before
filing any such amendment or supplement with the Commission and
thereafter promptly furnish at the Company's own expense to the
Underwriters and to dealers, copies in such quantities and at such
locations as the Representative may from time to time reasonably
request of an appropriate amendment or supplement to the Prospectus or
the Time of Sale Information so that the Prospectus or the Time of Sale
Information as so amended or supplemented will not, in the light of the
circumstances when it (or in lieu thereof the notice referred to in
Rule 173(a) under the Securities Act Regulations) is so delivered, be
misleading, or in the case of any Issuer Free Writing Prospectus,
conflict with the information contained in the Registration Statement,
or so that the Prospectus or the Time of Sale Information, as amended
or supplemented, will comply with the law;
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(j) To file promptly with the Commission any amendment or
supplement to the Registration Statement, any Free Writing Prospectus
or the Prospectus that may, in the judgment of the Company or the
Representative, be required by the Securities Act or requested by the
Commission;
(k) That, prior to filing with the Commission any amendment or
supplement to the Registration Statement, any Issuer Free Writing
Prospectus or the Prospectus, the Company shall furnish to the
Representative for review a copy of each such proposed amendment or
supplement, and the Company shall not file any such proposed amendment
or supplement to which the Representative reasonably objects;
(l) To furnish to the Representative, not less than two
business days before filing with the Commission during the period
referred to in paragraph (g) above, a copy of any document proposed to
be filed with the Commission pursuant to Section 13, 14, or 15(d) of
the Exchange Act and during the period of five years hereafter to file
all such documents and reports in the manner and within the time
periods required by the Exchange Act and the Exchange Act Regulations;
(m) Not to, and to use its best efforts to cause its officers,
directors and affiliates not to, (A) take, directly or indirectly prior
to termination of the underwriting syndicate contemplated by this
Agreement, any action designed to stabilize or manipulate the price of
any security of the Company, or which may cause or result in, or which
might in the future reasonably be expected to cause or result in, the
stabilization or manipulation of the price of any security of the
Company, to facilitate the sale or resale of any of the Underwritten
Securities, (B) sell, bid for, purchase or pay anyone (other than the
Underwriters as disclosed in the each of the Time of Sale Information
and Prospectus) any compensation for soliciting purchases of the
Underwritten Securities or (C) pay or agree to pay to any person any
compensation for soliciting any order to purchase any other securities;
(n) That the Company will comply with all of the provisions of
any undertakings in the Registration Statement and apply the net
proceeds from the sale of the Underwritten Securities in the manner set
forth therein and in the Prospectus;
15
(o) That the Company shall not invest or otherwise use the
proceeds received by the Company from its sale of the Underwritten
Securities in such a manner as would require the Company to register as
an investment company under the Investment Company Act; and
(p) To the extent, if any, that any rating provided with
respect to the Underwritten Securities by the applicable rating agency
is conditional upon the furnishing of documents or the taking of any
actions by the Company or any of its affiliates, the Company, shall
furnish, or cause to be furnished, such documents and take, or cause to
be taken, any such other actions.
5. Payment of Expenses.
(a) The Company agrees to pay all costs and expenses incident
to the performance of its obligations under this Agreement, whether or
not the transactions contemplated hereunder are consummated or this
Agreement is terminated, including expenses, fees and taxes in
connection with:
(i) the preparation and filing of the Registration
Statement (including financial statements, exhibits,
schedules, consents and certificates of experts), each
Prospectus, any Issuer Free Writing Prospectus, and any
amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Underwriters and
to dealers (including costs of mailing and shipment);
(ii) the preparation, issuance and delivery of the
certificates for the Underwritten Securities to the
Underwriters, including any transfer taxes or duties payable
upon the sale of the Underwritten Securities to the
Underwriters;
(iii) all necessary issue, transfer and other stamp
taxes in connection with the issuance and sale of the
Underwritten Securities to the Underwriters,
(iv) all fees and expenses of the Company's counsel,
independent public or certified public accountants and other
advisors;
(v) any fees and expenses of any rating agency
issuing a rating in respect of the Underwritten Securities;
(vi) the printing of this Agreement and any dealer
agreements and furnishing of copies of each to the
Underwriters and to dealers (including costs of mailing and
shipment);
(vii) the qualification of the Underwritten
Securities for offering and sale under state laws that the
Company and the Representative have mutually agreed are
appropriate and the determination of their eligibility for
investment under state law as aforesaid (including the legal
fees and filing fees and other disbursements of counsel for
the Underwriters) and the printing and furnishing of copies of
any blue sky surveys or legal investment surveys to the
Underwriters and to dealers;
16
(viii) the fees and expenses of any transfer agent or
registrar for the Underwritten Securities and miscellaneous
expenses referred to in the Registration Statement;
(ix) making road show presentations with respect to
the offering of the Underwritten Securities (if applicable);
(x) preparing and distributing copies of the
Transaction Agreements for the Representative and its legal
counsel; and
(xi) the performance of the Company's other
obligations hereunder.
(b) The Company agrees to reimburse the Representative for its
reasonable out-of-pocket expenses in connection with the performance of
its activities under this Agreement, including, but not limited to,
costs such as printing, facsimile, courier service, direct computer
expenses, accommodations and travel, but excluding the fees and
expenses of the Underwriters' outside legal counsel and any other
advisors, accountants, appraisers, etc. (other than the fees and
expenses of counsel with respect to state securities or blue sky laws,
which shall be reimbursed by the Company pursuant to the provisions of
subsection (a) above).
(c) If this Agreement shall be terminated by the Underwriters,
or any of them, because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Company shall be unable to
perform its obligations under this Agreement, the Company will
reimburse the Underwriters or such Underwriters as have so terminated
this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (such as printing, facsimile, courier service,
direct computer expenses, accommodations, travel and the fees and
disbursements of Underwriters' counsel) and any other advisors,
accountants, appraisers, etc. reasonably incurred by such Underwriters
in connection with this Agreement or the transactions contemplated
herein.
6. Conditions of the Underwriters' Obligations.
The obligations of the Underwriters hereunder to purchase Underwritten
Securities at the Closing Date are subject to the accuracy of the
representations and warranties on the part of the Company hereunder on the date
hereof, at the Time of Sale and at the Closing Date, the performance by the
Company of its covenants and other obligations hereunder and to the satisfaction
of the following further conditions at the Closing Date:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that
purpose shall be pending or, to the knowledge of the Company,
threatened by the Commission; and the Prospectus Supplement shall have
been filed or transmitted for filing by means reasonably calculated to
result in a filing with the Commission pursuant to Rule 424(b) under
the Act;
(b) Since the Time of Sale Information, there shall have been
no material adverse change in the condition of the Company or the
Seller that, in the judgment of the Underwriters, impairs the
investment quality of the Underwritten Securities so as to make it
impracticable to market the Underwritten Securities on the terms and in
the manner contemplated in the Prospectus;
17
(c) (i) the representations and warranties of the Company in
this Agreement and all other Transaction Agreements shall be true and
correct;
(ii) the Company shall have complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder and under each other
Transaction Agreement at or prior to the Closing Date; and
(iii) no event shall have occurred that, with notice
or passage of time, would constitute a default under any of
the Transaction Agreements to which the Company is a party.
The Company shall have delivered to the Underwriters a certificate
dated the Closing Date of the President, a Senior Vice President, a Vice
President or the Chief Financial Officer of the Company to the effect that each
condition set forth in clauses (a), (b) and (c)(i), (ii), and (iii) above has,
to the best of his or her knowledge after reasonable investigation, been
satisfied;
(d) The Underwriters shall have received the opinions of
Hunton & Xxxxxxxx LLP, counsel for the Company and the Seller, dated
the Closing Date, in the form customary for similar transactions (i) as
to the tax status of the transaction and the disclosure with respect
thereto; (ii) as to the status of the Company and the Seller, and the
enforceability of the Transaction Agreements and various other matters;
and (iii) as to the "true sale" of the Mortgage Loans and the
non-consolidation of the Seller with the Company, and the Company with
the Trust. The Underwriters shall also have received a negative
assurance letter from such counsel, dated the Closing Date, as to the
information contained in the Registration Statement, Prospectus and
Time of Sale Information;
(e) The Underwriters shall have received the opinion of
counsel for the Master Servicer and Securities Administrator, dated the
Closing Date, as to its incorporation and the execution and delivery of
the Transaction Agreements to which it is a party. The Underwriters
shall also have received (a) a certificate, dated the Closing Date, of
an officer of the Master Servicer in which such officer shall state
that, to the best of such officer's knowledge after reasonable
investigation: (i) the Master Servicer is not an affiliate of any other
entity listed as a transaction party in the Prospectus Supplement,
other than as previously disclosed in writing to the Company, (ii) the
information in the Prospectus Supplement related to the Master Servicer
(the "MASTER SERVICER DISCLOSURE") is true and correct in all material
respects and nothing has come to his or her attention that that would
lead such officer to believe that the Master Servicer Disclosure
contains any untrue statement of material fact or omits to state a
material fact necessary to make the statements therein not misleading
and (b) a certificate, dated the Closing Date of an officer of the
Securities Administrator in which such officer shall state that, to the
best of such officer's knowledge after reasonable investigation: (i)
the Securities Administrator is not an affiliate of any other entity
listed as a transaction party in the Prospectus Supplement, other than
as previously disclosed in writing to the Company, (ii) the information
in the Prospectus Supplement related to the Securities Administrator
(the "SECURITIES ADMINISTRATOR DISCLOSURE") is true and correct in all
material respects and nothing has come to his or her attention that
that would lead such officer to believe that the Securities
Administrator Disclosure contains any untrue statement of material fact
or omits to state a material fact necessary to make the statements
therein not misleading;
18
(f) The Underwriters shall have received the opinion of
in-house counsel for those originators originating more than 20% of the
Mortgage Loans (Residential Funding Corporation and GMAC Mortgage
Corporation), dated the Closing Date, as to its incorporation and the
execution and delivery of the Transaction Agreements to which it is a
party. The Underwriters shall also have received (a) a certificate,
dated the Closing Date of an officer of such originator in which such
officer shall state that, to the best of such officer's knowledge after
reasonable investigation: (i) such originator is not an affiliate of
any other entity listed as a transaction party in the Prospectus
Supplement, other than as previously disclosed in writing to the
Company, (ii) the information in the Prospectus Supplement related to
such originator, including the underwriting guidelines (the "ORIGINATOR
DISCLOSURE") is true and correct in all material respects and nothing
has come to his or her attention that that would lead such officer to
believe that the Originator Disclosure contains any untrue statement of
material fact or omits to state a material fact necessary to make the
statements therein not misleading;
(g) The Underwriters shall have received the opinion of
in-house counsel for those servicers servicing more than 20% of the
Mortgage Loans (Residential Funding Corporation and GMAC Mortgage
Corporation), dated the Closing Date, as to its incorporation and the
execution and delivery of the Transaction Agreements to which it is a
party. The Underwriters shall also have received (a) a certificate,
dated the Closing Date of an officer of such servicer in which such
officer shall state that, to the best of such officer's knowledge after
reasonable investigation: (i) such servicer is not an affiliate of any
other entity listed as a transaction party in the Prospectus
Supplement, other than as previously disclosed in writing to the
Company, (ii) the information in the Prospectus Supplement related to
such servicer (the "SERVICER DISCLOSURE") is true and correct in all
material respects and nothing has come to his or her attention that
that would lead such officer to believe that the Servicer Disclosure
contains any untrue statement of material fact or omits to state a
material fact necessary to make the statements therein not misleading;
(h) The Underwriters shall have received the opinion of
counsel (which may be in-house) to the counterparties to the Swap
Agreement and Interest Rate Cap Agreement as to their respective
incorporation and execution and delivery of the Transaction Agreements
to which each is a party. The Underwriters shall also have received (a)
a certificate, dated the Closing Date of an officer of the counterparty
in which such officer shall state that, to the best of such officer's
knowledge after reasonable investigation: (i) the counterparty is not
an affiliate of any other entity listed as a transaction party in the
Prospectus Supplement, other than as previously disclosed in writing to
the Company, (ii) the information in the Prospectus Supplement related
to the Swap counterparty or Cap counterparty (as applicable, the
"COUNTERPARTY DISCLOSURE") is true and correct in all material respects
and nothing has come to his or her attention that that would lead such
officer to believe that the Counterparty Disclosure contains any untrue
statement of material fact or omits to state a material fact necessary
to make the statements therein not misleading;
19
(i) The Underwriters shall have received the opinion of
counsel to the Trustee, dated the Closing Date, as to the incorporation
and the execution and delivery of the Transaction Agreements to which
it is a party. The Underwriters shall also have received a certificate
dated the Closing Date of an officer of the Trustee in which such
officer shall state that, to the best of such officer's knowledge after
reasonable investigation, the Trustee is not an affiliate of any other
entity listed as a transaction party in the Prospectus Supplement;
(j) The Underwriters shall have received the opinion of their
counsel, dated the Closing Date, in form and substance satisfactory to
the Underwriters;
(k) The Underwriters shall have received from Deloitte &
Touche LLP, certified public accountants, a letter, dated the date
hereof and satisfactory in form and substance to such Underwriter and
such Underwriter's counsel, to the effect that they have performed
certain specified procedures, all of which have been agreed to by such
Underwriter, as a result of which they determined that certain
information of an accounting, financial or statistical nature, set
forth in the Time of Sale Information and Prospectus Supplement under
the captions "Description of the Mortgage Loans," "Static Pool
Information," "Description of the Underwritten Securities," and
"Yields, Prepayment and Weighted Average Life Considerations," agrees
with the records of the Company and the Seller or any information
provided to Deloitte & Touche LLP by or on behalf of the Company,
excluding any questions of legal interpretation;
(l) The Certificates shall have received the respective
ratings set forth on page (iv) of the Prospectus Supplement;
(m) The Underwriters shall have received evidence satisfactory
to the Representative and counsel to the Underwriters that, on or
before the Closing Date, UCC-1 financing statements have been or are
being filed (a) in the office of the Secretary of State of the State of
Maryland reflecting the transfer of the interest of the Seller in the
Mortgage Loans and the proceeds thereof to the Company, and (b) in the
office of the Secretary of State of the State of Delaware the transfer
of the interest of the Company in the Mortgage Loans and the proceeds
thereof to the Trust, and the pledge of such interest to the Trustee
for the benefit of the Certificateholders; and
(n) The Company shall have furnished to each Underwriter such
further information, certificates and documents as such Underwriter may
reasonably have requested, and all proceedings in connection with the
transactions contemplated by this Agreement and all documents incident
thereto shall be in all material respects satisfactory in form and
substance in their reasonable judgment, to each Underwriter and its
counsel.
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7. Termination.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of the Representative, at any time
prior to the Closing Date:
(a) If any of the conditions specified in Section 6 shall not
have been fulfilled when and as required by this Agreement to be
fulfilled; or
(b) If there has been, in the judgment of the Representative,
since the respective dates as of which information is given in the
Registration Statement, the Prospectus or the Time of Sale Information,
any material adverse change, or any development involving a prospective
material adverse change, or any comparable adverse change with respect
to the Seller or the Company, whether or not arising in the ordinary
course of business; or
(c) If there has occurred any outbreak or escalation of
national or international hostilities, other national or international
calamity or crisis (including without limitation any terrorist or
similar attack), any change in the United States or international
financial markets, or any substantial change in United States' or
international economic, political, financial or other conditions, the
effect of which on the financial markets of the United States is such
as to make it, in the judgment of the Representative, impracticable or
inadvisable to market the Underwritten Securities in the manner and on
the terms described in each of the Time of Sale Information and the
Prospectus or enforce contracts for the sale of the Underwritten
Securities; or
(d) Any action has been taken by any federal, state or local
government or agency in respect of its monetary or fiscal affairs
which, in the reasonable opinion of the Representative, has a material
adverse effect on the securities markets in the United States; or
(e) the Company or the Seller shall have sustained a loss by
strike, fire, flood, earthquake, accident or other calamity of such
character as in the judgment of the Representative may interfere
materially with the conduct of the business and operations of the
Company or the Seller regardless of whether or not such loss shall have
been insured.
If the Representative elects to terminate this Agreement as provided in
this Section 7, the Company and the Underwriters shall be notified promptly by
telephone, promptly confirmed by facsimile.
If the sale to the Underwriters of the Underwritten Securities, as
contemplated by this Agreement, is not carried out by the Underwriters for any
reason permitted under this Agreement or if such sale is not carried out because
the Company shall be unable to comply in all material respects with any of the
terms of this Agreement, the Company shall not be under any obligation or
liability under this Agreement (except to the extent provided in Sections 5 and
9 hereof) and the Underwriters shall be under no obligation or liability to the
Company under this Agreement (except to the extent provided in Section 9 hereof)
or to one another hereunder.
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8. Increase in Underwriters' Commitments.
If any Underwriter shall default at the Closing Date in its obligation
to take up and pay for the Underwritten Securities to be purchased by it under
this Agreement on such date, the Representative shall have the right, but not
the obligation, within 36 hours after such default, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Underwritten Securities which such
Underwriter shall have agreed but failed to take up and pay for (the "DEFAULTED
SECURITIES"). Absent the completion of such arrangements within such 36-hour
period, (i) if the total number of Defaulted Securities does not exceed 10% of
the total number of Underwritten Securities to be purchased on such date, each
non-defaulting Underwriter shall take up and pay for (in addition to the number
of Underwritten Securities which it is otherwise obligated to purchase on such
date pursuant to this Agreement) the portion of the total number of Underwritten
Securities agreed to be purchased by the defaulting Underwriter on such date in
the proportion that its underwriting obligations hereunder bears to the
underwriting obligations of all non-defaulting Underwriters; and (ii) if the
total number of Defaulted Securities exceeds 10% of the total number of
Underwritten Securities to be purchased on such date, the Representative may
terminate this Agreement by notice to the Company, without liability of any
party to any other party except that the provisions of Sections 5 and 9 hereof
shall at all times be effective and shall survive such termination.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Underwritten Securities hereunder on such date unless all of the
Underwritten Securities to be purchased on such date are purchased on such date
by the Underwriters (or by substituted Underwriters selected by the
Representative with the approval of the Company or selected by the Company with
the approval of the Representative).
If a new Underwriter or Underwriters are substituted for a defaulting
Underwriter in accordance with the foregoing provision, the Company or the
non-defaulting Underwriters shall have the right to postpone the Closing Date
for a period not exceeding seven business days in order that any necessary
changes in the Registration Statement, the Prospectus, the Time of Sale
Information and other documents may be effected.
The term "UNDERWRITER" as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with the same effect as
if such substituted Underwriter had originally been named in this Agreement.
9. Indemnity and Contribution by the Company and the Underwriters.
22
(a) The Company and the Seller, jointly and severally, agree
to indemnify and hold harmless each Underwriter, each officer and
director of each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (or actions in respect thereof) that
arise out of or are based upon any (a) (i) any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Certificates as
originally filed or in any amendment thereof, or in the Base Prospectus
or the Prospectus or the Time of Sale Information or the Static Pool
Information, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, (ii) any untrue statement
or alleged untrue statement of a material fact contained in any Issuer
Free Writing Prospectus or any Issuer Information contained in any Free
Writing Prospectus prepared by or on behalf of any Underwriter or in
any Free Writing Prospectus which is required to be filed pursuant to
Section 3(f) or Section 3(h), or the omission or alleged omission to
state a material fact required to make the statements therein, in light
of the circumstances under which they were made, not misleading, which
was not corrected by Corrective Information subsequently supplied by
the Company to such Underwriter within a reasonable period of time
prior to the Time of Sale, and (iii) any breach of the representation
and warranty in Section 1(s), and will reimburse each Underwriter and
any officer, director or controlling person for any legal or other
expenses reasonably incurred by such Underwriter or such officer,
director or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred, except insofar as such losses, claims, damages,
or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission in reliance upon and in conformity
with any information with respect to which each Underwriter has agreed
to indemnify the Company pursuant to Section 9(b) hereof.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the indemnity set forth in Section
9(a) above from the Company and the Seller to the Underwriters, but
only with reference to any untrue statements or alleged untrue
statements of a material fact, or omissions or alleged omissions to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
in the Underwriting Information.
23
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either Section 9(a) or 9(b)
hereof, such person (the "INDEMNIFIED PARTY") shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING
PARTY") in writing, but the omission so to notify the indemnifying
party will not relieve the indemnifying party from any liability that
the indemnifying party may have to any indemnified party hereunder
except to the extent such indemnifying party has been materially
prejudiced thereby, and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others
that the indemnifying party may designate in such proceeding and shall
pay the reasonable fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the reasonable fees and
expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel, (ii) the
indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the
action or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. In any case described in subclauses (i), (ii)
or (iii) of the immediately preceding sentence, the fees and
disbursements of counsel for the indemnified party shall be paid by the
indemnifying party. It is understood that the indemnifying party shall
not, in connection with any proceeding or related proceedings involving
the same general allegations in the same jurisdiction, be liable for
the reasonable fees and expenses of more than one separate firm (plus
one local counsel, as necessary) for all such indemnified parties. Such
firm shall be designated in writing by the relevant Underwriter, in the
case of parties indemnified pursuant to Section 9(a) hereof and by the
Company or the Seller, in the case of parties indemnified pursuant to
Section 9(b) hereof. The indemnifying party may, at its option, at any
time upon written notice to the indemnified party, assume the defense
of any proceeding and may designate counsel reasonably satisfactory to
the indemnified party in connection therewith; provided that the
counsel so designated would have no actual or potential conflict of
interest in connection with such representation. Unless it shall assume
the defense of any proceeding the indemnifying party shall not be
liable for any settlement of any proceeding, effected without its
written consent, which consent shall not be unreasonably withheld, but
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel as contemplated herein, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without
its written consent if (y) such settlement is entered into more than 90
days after receipt by such indemnifying party of the aforesaid request
and (z) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement (A) does
not include a statement as to, or admission of, fault, culpability or a
failure to act by or on behalf of any such indemnified party and (B)
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Article 9 is
unavailable to an indemnified party under Section 9(a) or 9(b) hereof
or is insufficient in respect of any losses, claims, damages, expenses
or liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages, expenses or liabilities, in such proportion as
is appropriate to reflect (i) the relative benefits received by the
Company on the one hand and the related Underwriter on the other from
the offering of the Certificates or (ii) if the allocation provided by
clause (a) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one
hand and the related Underwriter on the other in connection with the
statements or omissions or alleged statements or alleged omissions that
resulted in such losses, claims, damages, expenses or liabilities, as
well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and by the related
Underwriter on the other shall be in the same proportions that the
purchase price paid by the related Underwriter to the Company for the
Certificates ("NET PROCEEDS") bears to the excess of (a) the purchase
prices paid by investors to each Underwriter for the Certificates (the
"PUBLIC OFFERING PRICE") over (b) Net Proceeds. The relative fault of
the Company on the one hand and of the related Underwriter on the other
shall be determined by reference to, among other things, whether the
untrue or allegedly untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company or by the related Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
24
(e) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation or by any other method of allocation
that does not take account of the considerations referred to in Section
9(d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, expenses and liabilities
referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim except where the indemnified party
is required to bear such expenses pursuant to Section 9(d), which
expenses the indemnifying party shall pay as and when incurred, at the
request of the indemnified party, to the extent such expenses are
required to be paid by such indemnifying party under this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total aggregate Public Offering Price of the Certificates
underwritten and distributed to the public by such Underwriter exceeds
the related Net Proceeds. In the event that any expenses so paid by the
indemnifying party are subsequently determined not to be required to be
borne by the indemnifying party hereunder, the party that received such
payment shall promptly refund the amount so paid to the party that made
such payment. 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.
(f) The indemnity and contribution agreements contained in
this Section 9 and the representations and warranties of the Company
and the Seller set forth in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by the Underwriters or on behalf
of the Underwriters or any person controlling any Underwriter or by or
on behalf of the Company and its respective directors or officers or
any person controlling the Company and (iii) acceptance of and payment
for any of the Underwritten Securities.
25
10. Survival.
The respective indemnities, agreements, representations, warranties and
other statements of the Company, of its officers and directors and of the
several Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company, or any of its partners, officers or directors
or any controlling person, as the case may be, and will survive delivery of and
payment for the Underwritten Securities sold hereunder and any termination of
this Agreement.
11. Notices.
Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by telegram and, if to the Underwriters,
shall be sufficient in all respects if delivered to Barclays Capital, 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000; if to the Company, shall be sufficient in
all respects if delivered to the Company at the offices of the Company at Xxxxx
Asset Securitization, Inc., 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: President.
12. Governing Law; Headings.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK. The section headings in this Agreement have
been inserted as a matter of convenience of reference and are not a part of this
Agreement.
13. Part Unenforceability.
The invalidity or unenforceability of any Section, paragraph or
provision of this Agreement shall not affect the validity or enforceability of
any other Section, paragraph or provision hereof. If any Section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only
such minor changes) as are necessary to make it valid and enforceable.
14. Parties at Interest.
The Agreement herein set forth has been and is made solely for the
benefit of the Underwriters, the Company, and the controlling persons, directors
and officers referred to in Sections 9 and 10 hereof, and their respective
successors, assigns, executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from any
of the Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
15. Role of Underwriters.
The Company acknowledges and agrees that the Underwriters are acting
solely in the capacity of an arm's length contractual counterparty to the
Company and the Seller with respect to the offering of the Underwritten
Securities contemplated hereby (including in connection with determining the
terms of the offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company, the Seller, or any other person. Additionally, neither
the Representative nor any other Underwriter is advising the Company, the
Seller, or any other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company and the Seller shall each
consult with its own advisors concerning such matters and shall be responsible
for making their own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or
liability to the Company or the Seller with respect thereto. Any review by the
Underwriters of the Company, the Seller, the transactions contemplated hereby or
other matters relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the Company or the
Seller.
26
16. Entire Agreement; Amendments, Modifications and Waivers.
This Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter
hereof. This Agreement may not be amended or modified unless in writing by all
of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to
benefit.
17. Counterparts and Facsimile Signatures.
This Agreement may be signed by the parties in counterparts which
together shall constitute one and the same agreement among the parties. A
facsimile signature shall constitute an original signature for all purposes.
27
If the foregoing correctly sets forth the understanding among the
parties to this Underwriting Agreement, please so indicate in the space provided
below for the purpose, whereupon this Underwriting Agreement shall constitute a
binding agreement among the parties hereto.
Very truly yours,
XXXXX ASSET SECURITIZATION, INC.
By: /s/ Xxxxxxxxxxx X. Xxxx
-----------------------
Name: Xxxxxxxxxxx X. Xxxx
Title: Chief Financial Officer
MAIA MORTGAGE FINANCE
STATUTORY TRUST
By: /s/ Xxxxxxxxxxx X. Xxxx
-----------------------
Name: Xxxxxxxxxxx X. Xxxx
Title: Trustee & President
Accepted and agreed to as
of the date first above written:
BARCLAYS CAPITAL, INC.
By: /s/ Xxx Xxx
-----------
Name: Xxx Xxx
Title: Managing Director
For itself and as Representative of the other
Underwriters named on Schedule I hereto.
SCHEDULE I
TO UNDERWRITING AGREEMENT
List of Underwriters
--------------------------------------------------------------------------------
UNDERWRITERS
Barclays Capital, Inc.
Bear, Xxxxxxx & Co., Inc.
--------------------------------------------------------------------------------
SCHEDULE II
TO UNDERWRITING AGREEMENT
Underwriting Allocation
CLASS OF CERTIFICATES ALLOCATION PURCHASE PRICE (%)
--------------------- ---------- ------------------
BARCLAYS CAPITAL BEAR XXXXXXX
A1 $384,939,000 $42,771,000
A-2A 45,000,000 5,000,000
A-2B 147,465,000 16,385,000
A-3 64,157,400 7,128,600
B-1 12,866,400 1,429,600
B-2 9,736,200 1,081,800
B-3 3,825,000 425,000
B-4 6,606,900 734,100
B-5 3,477,600 386,400
B-6 3,477,600 386,400
B-7 3,477,600 386,400
B-8 4,172,400 463,600
