BOARDWALK MORTGAGE SECURITIES INC.
$[_____________] (Approximate)
Asset-Backed Pass-Through Certificates
Boardwalk Mortgage Securities Inc.
Series 200_-__
[date]
UNDERWRITING AGREEMENT
[ ]
----------
as Representative of the several
Underwriters
[ ]
----------
[ ]
----------
Ladies and Gentlemen:
Boardwalk Mortgage Securities Inc. (the "Depositor"), a Delaware
corporation, has authorized the issuance and sale of Boardwalk Mortgage
Securities Inc., Asset-Backed Pass-Through Certificates, Series 200_-__ (the
"Certificates"). The Certificates are designated as (i) the Class A-1
Certificates, the Class A-2A Certificates, the Class A-2B Certificates, the
Class A-2C Certificates and the Class A-2D Certificates (collectively, the
"Class A Certificates") and (ii) the Class M-1 Certificates, the Class M-2
Certificates, the Class M-3 Certificates, the Class M-4 Certificates, the Class
M-5 Certificates, the Class M-6 Certificates, the Class M-7 Certificates, the
Class M-8 Certificates, the Class M-9 Certificates and the Class M-10
Certificates (collectively, the "Mezzanine Certificates"; together with the
Class A Certificates, the "Underwritten Certificates"). Also to be issued are
the Class CE Certificates, the Class P Certificates, the Class R Certificates
and the Class R-X Certificates (collectively, the "Non-Offered Certificates").
The Underwritten Certificates and the Non-Offered Certificates are referred to
together as the "Certificates."
Only the Underwritten Certificates are being purchased by the
underwriters named in Schedule A hereto (the "Underwriters"), and the
Underwriters severally are purchasing only the Underwritten Certificates set
forth opposite their names in Schedule A, except that the amounts purchased by
the Underwriters may change in accordance with Section 10 of this Agreement.
[__________] is acting as representative of the several Underwriters and, in
such capacity, is hereinafter referred to as the "Representative." If only one
underwriter is named in Schedule A, the terms "Underwriter," "Underwriters" and
"Representative" shall refer to that named underwriter.
The Certificates will be issued under a Pooling and Servicing
Agreement, dated as of [__________] (the "Pooling and Servicing Agreement"),
among the Depositor as depositor, [__________] as master servicer (in such
capacity, the "Master Servicer") and [__________] as trustee (in such capacity,
the "Trustee"). Capitalized but undefined terms shall have the meanings set
forth in the Pooling and Servicing Agreement.
The Certificates will evidence fractional undivided interests in the
Trust (the "Trust") formed pursuant to the Pooling and Servicing Agreement. The
assets of the Trust will include, among other things, a segregated pool (the
"Mortgage Pool") of certain adjustable-rate and fixed-rate, conventional, one-
to four-family residential mortgage loans (collectively, the "Mortgage Loans"),
the Master Servicer Prepayment Charge Payment Amounts, the Net WAC Rate
Carryover Reserve Account and the Swap Account (including any payments made
under the Swap Administration Agreement deposited in the Trust) and such amounts
as may be held by the Trustee in any other accounts held by the Trustee for the
Trust. A form of the Pooling and Servicing Agreement has been filed as an
exhibit to the Registration Statement.
The Underwritten Certificates are more fully described in a
Registration Statement which the Depositor has furnished to the Underwriters.
Pursuant to the Mortgage Loan Purchase Agreement, dated the date of
this Agreement (the "Mortgage Loan Purchase Agreement"), between Ameriquest
Mortgage Company (in such capacity, the "Seller") and the Depositor, the Seller
will sell to the Depositor all of its right, title and interest in and to the
Mortgage Loans, including the scheduled principal balances of the Mortgage Loans
as of the Cut-off Date and interest due after the Cut-off Date. Pursuant to the
Pooling and Servicing Agreement, the Depositor will sell to the Trust all of its
right, title and interest in and to the Mortgage Loans, including the scheduled
principal balances of the Mortgage Loans as of the Cut-off Date and interest due
after the Cut-off Date.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor represents and warrants to, and agrees with the Underwriters that as
of the date of the Preliminary Prospectus, as of the date of the Prospectus, and
as of the Closing Date:
(a) A Registration Statement on Form S-3 (No. 333-[__________])
relating to the Underwritten Certificates has (i) been prepared by the Depositor
in conformity with the requirements of the Securities Act of 1933, as amended
(the "Securities Act"), and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective and is still effective as of the date
hereof under the Securities Act. Copies of such Registration Statement have been
delivered by the Depositor to the Underwriters. As used in this Agreement,
"Effective Time" means the date and the time as of which such Registration
Statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission; "Effective Date" means the date of the
Effective Time; "Registration Statement" means such registration statement, at
the Effective Time, including any documents incorporated by reference therein at
such time; "Base Prospectus" means such final prospectus dated [__________] and
"Prospectus Supplement" means the final prospectus supplement relating to the
Underwritten Certificates, to be filed with the Commission pursuant to paragraph
(2), (3) or (5) of Rule 424(b) of the Rules and Regulations. "Prospectus" means
the Base Prospectus together with the Prospectus Supplement. The Depositor
proposes to prepare, after the final terms of all classes of the Underwritten
Certificates are established, a Free Writing Prospectus that contains
substantially all information that will appear in the Prospectus Supplement, to
the extent that such information is known at that time (such Free Writing
Prospectus together with the Base Prospectus, the "Preliminary Prospectus").
Reference made herein to the Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the date of the
Prospectus and any reference to any amendment or supplement to the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
document filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date of the Preliminary Prospectus or the Prospectus,
as applicable, and incorporated by reference in the Preliminary Prospectus or
the Prospectus, as applicable, and any reference to any amendment to the
Registration Statement shall be deemed to include any report of the Depositor
filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Time that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or suspending the
use of the Prospectus or the Preliminary Prospectus or the effectiveness of the
Registration Statement and no proceedings for such purpose are pending or, to
the Depositor's knowledge, threatened by the Commission. There are no contracts
or documents of the Depositor which are required to be filed as exhibits to the
Registration Statement pursuant to the Securities Act or the Rules and
Regulations which have not been so filed or incorporated by reference therein on
or prior to the Effective Date of the Registration Statement other than such
documents or materials, if any, as any Underwriter delivers to the Depositor
pursuant to Section 5 hereof for filing on Form 8-K. The conditions for use of
Form S-3, as set forth in the General Instructions thereto, have been satisfied.
(b) The Registration Statement, the Preliminary Prospectus and the
Prospectus conform, and any further amendments or supplements to the
Registration Statement, the Preliminary Prospectus and the Prospectus will
conform, when they become effective, are filed with the Commission or as of the
date of the Contract of Sale, as the case may be, in all respects to the
requirements of the Securities Act and the Rules and Regulations. The
Registration Statement, as of the Effective Date thereof, and any amendment
thereto, did not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Preliminary Prospectus, as amended or
supplemented, as of its date and as of the date of the Contract of Sale, and the
Prospectus, as amended or supplemented, as of its date and as of the Closing
Date, do not and will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to (i) information
contained in or omitted from the Registration Statement, the Preliminary
Prospectus or the Prospectus in reliance upon and in conformity with information
furnished to the Depositor in writing by any Underwriter expressly for use
therein as set forth in Exhibit A hereto (the "Underwriters' Information"), and
(ii) any Excluded Information (as defined in Section 8(a)(i) below).
(c) The documents incorporated by reference in the Preliminary
Prospectus or the Prospectus, as applicable, when they became effective, were
filed with the Commission or as of the date of the Contract of Sale, as the case
may be, conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective, are filed
with the Commission or as of the date of the Contract of Sale, as the case may
be, will conform in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder.
(d) The Depositor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the conduct of its
business so requires such standing. The Depositor has all power and authority
necessary to own or hold its properties, to conduct the business in which it is
engaged and to enter into and perform its obligations under this Agreement, the
Mortgage Loan Purchase Agreement and the Pooling and Servicing Agreement
(collectively, the "Agreements") and to cause the Certificates to be issued.
(e) Except as disclosed in the Preliminary Prospectus and the
Prospectus, there are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before or, to the
best of the Depositor's knowledge, threatened by any court, administrative
agency or other tribunal to which the Depositor is a party or of which any of
its properties is the subject (a) which if determined adversely to the Depositor
would have a material adverse effect on the business or financial condition of
the Depositor, (b) asserting the invalidity of any of the Agreements or the
Certificates, (c) seeking to prevent the issuance of the Certificates or the
consummation by the Depositor of any of the transactions contemplated by any of
the Agreements or (d) which might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of any of the Agreements or the Certificates.
(f) This Agreement has been, and the other Agreements when executed and
delivered as contemplated hereby and thereby will have been, duly authorized,
executed and delivered by the Depositor, and this Agreement constitutes, and the
other Agreements when executed and delivered as contemplated herein will
constitute, legal, valid and binding instruments enforceable against the
Depositor in accordance with their respective terms, subject as to
enforceability to (x) applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally, (y)
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of indemnity
under any of the Agreements, limitations of public policy under applicable
securities laws.
(g) The execution, delivery and performance of the Agreements by the
Depositor and the consummation of the transactions contemplated hereby and
thereby, and the issuance and delivery of the Certificates do not and will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Depositor is
a party, by which the Depositor is bound or to which any of the properties or
assets of the Depositor or any of its subsidiaries is subject, which breach or
violation would have a material adverse effect on the business, operations or
financial condition of the Depositor or its ability to perform its obligations
under any of the Agreements, nor will such actions result in any violation of
the provisions of the articles of incorporation or by-laws of the Depositor or
any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Depositor or any of its properties or
assets, which breach or violation would have a material adverse effect on the
business, operations or financial condition of the Depositor or its ability to
perform its obligations under any of the Agreements.
(h) The direction by the Depositor to the Trustee to execute,
authenticate, issue and deliver the Certificates has been duly authorized by the
Depositor, and, assuming the Trustee has been duly authorized to undertake such
actions, when executed, authenticated, issued and delivered by the Trustee, in
accordance with the Pooling and Servicing Agreement, the Certificates will be
validly issued and outstanding and the holders of the Certificates will be
entitled to the rights and benefits of the Certificates as provided by the
Pooling and Servicing Agreement.
(i) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance of the Certificates and the sale of the
Underwritten Certificates to the Underwriters, or the consummation by the
Depositor of the other transactions contemplated by the Agreements except such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Underwritten Certificates by the Underwriters or as have
been obtained.
(j) At the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor will: (i) have equitable title to the
Mortgage Loans conveyed by the Seller, free and clear of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens"); (ii) not have assigned to any person (other than the
Trustee) any of its right, title or interest in the Mortgage Loans and (iii)
have the power and authority to sell the Mortgage Loans to the Trustee and to
sell the Underwritten Certificates to the Underwriters. Upon execution and
delivery of the Pooling and Servicing Agreement by the Trustee, the Trustee will
have acquired beneficial ownership of all of the Depositor's right, title and
interest in and to the Mortgage Loans. Upon delivery to the Underwriters of the
Underwritten Certificates, the Underwriters will have good title to the
Underwritten Certificates free of any Liens.
(k) As of the Cut-off Date, each of the Mortgage Loans will meet the
eligibility criteria described in the Preliminary Prospectus and the Prospectus
and will conform to the descriptions thereof contained in the Preliminary
Prospectus and the Prospectus.
(l) Neither the Depositor nor the Trust is an "investment company"
within the meaning of such term under the Investment Company Act of 1940, as
amended (the "1940 Act") and the rules and regulations of the Commission
thereunder.
(m) At the Closing Date, the Underwritten Certificates and the Pooling
and Servicing Agreement will conform in all material respects to the
descriptions thereof contained in the Preliminary Prospectus and the Prospectus.
(n) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of the Agreements and the Certificates have
been paid or will be paid at or prior to the Closing Date.
(o) Since the respective dates as of which information is given in the
Preliminary Prospectus and the Prospectus, there has not been any material
adverse change in the general affairs, management, financial condition, or
results of operations of the Depositor or Seller, otherwise than as set forth or
contemplated in the Prospectus as supplemented or amended as of the Closing
Date.
(p) As of the Effective Date and as of the date of the Contract of
Sale, the Depositor is not and will not be as of the Closing Date an "ineligible
issuer" as defined in Rule 405 under the Securities Act.
(q) Any certificate signed by an officer of the Depositor and delivered
to the Underwriters or counsel for the Underwriters in connection with an
offering of the Underwritten Certificates shall be deemed, and shall state that
it is, a representation and warranty as to the matters covered thereby to each
person to whom the representations and warranties in this Section 1 are made.
(r) As of the date of the Contract of Sale, each Issuer Free Writing
Prospectus and the Preliminary Prospectus, considered together, did not include
any untrue statement of a material fact or omission of any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
SECTION 2. PURCHASE AND SALE. The several commitments of the
Underwriters to purchase the Underwritten Certificates pursuant to this
Agreement shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth. The Depositor agrees to instruct the Trustee to issue the
Certificates and agrees to sell to each Underwriter, and each Underwriter agrees
(except as provided in Section 10 hereof) severally and not jointly to purchase
from the Depositor, the aggregate principal amounts or percentage interests of
the Underwritten Certificates of each Class, as set forth opposite such
Underwriter's name on Schedule A, at the purchase price or prices set forth on
Schedule A.
SECTION 3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwritten Certificates shall be made at the offices of Xxxxxxx Xxxxxxxx &
Xxxx LLP, Two World Financial Center, 29th Floor, New York, New York 10281, or
at such other place as shall be agreed upon by the Underwriters and the
Depositor at 10:00 A.M. New York City time on [_________], or at such other time
or date as shall be agreed upon in writing by the Underwriters and the Depositor
(such date being referred to as the "Closing Date"). Payment shall be made to
the Depositor by wire transfer of same day funds payable to the account of the
Depositor. Delivery of the Underwritten Certificates shall be made to the
several Underwriters against payment of the purchase price thereof. The
Underwritten Certificates so delivered will be initially represented by one or
more certificates registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC"). The interests of the beneficial owners of the
Underwritten Certificates will be represented by book entries on the records of
DTC and participating members thereof. Definitive Underwritten Certificates will
be available only under the limited circumstances specified in the Pooling and
Servicing Agreement.
SECTION 4. OFFERING BY THE UNDERWRITERS. It is understood that, subject
to the terms and conditions hereof, the several Underwriters propose to offer
the Underwritten Certificates for sale to the public as set forth in the
Prospectus.
SECTION 5. AGREEMENTS.
(a) The Depositor agrees as follows:
(i) To prepare the Preliminary Prospectus and the Prospectus in a
form approved by the Underwriters; to file such Preliminary
Prospectus pursuant to Rule 433(d) under the Securities Act
not later than the same day on which the Preliminary
Prospectus was made available to the Underwriters; to file
such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the second Business Day following the day
on which the Prospectus was made available to the
Underwriters; to make no further amendment or supplement to
the Registration Statement or to the Prospectus prior to the
Closing Date except as permitted herein; to advise the
Underwriters, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has
been filed or becomes effective prior to the termination of
the offering of the Underwritten Certificates or any
supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the Underwriters or their counsel
with copies thereof without charge; to file promptly all
reports and any definitive proxy or information statements
required to be filed by the Depositor with the Commission
pursuant to Section 13(a), 13(c), 14 or l5(d) of the Exchange
Act subsequent to the date of the Prospectus and, for so long
as the delivery of a prospectus is required in connection with
the offering or sale of the Underwritten Certificates; to
promptly advise the Underwriters of its receipt of notice of
the issuance by the Commission of any stop order or the
institution of or, to the knowledge of the Depositor, the
threatening of any proceeding for such purpose, or of: (i) any
order preventing or suspending the use of the Preliminary
Prospectus or the Prospectus; (ii) the suspension of the
qualification of the Underwritten Certificates for offering or
sale in any jurisdiction; (iii) the initiation of or threat of
any proceeding for any such purpose or (iv) any request by the
Commission for the amending or supplementing of the
Registration Statement, the Preliminary Prospectus or the
Prospectus or for additional information. In the event of the
issuance of any stop order or of any order preventing or
suspending the use of the Preliminary Prospectus or the
Prospectus or suspending any such qualification, the Depositor
promptly shall use its best efforts to obtain the withdrawal
of such order by the Commission.
(ii) To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and of each amendment
thereto filed with the Commission, including all consents and
exhibits filed therewith.
(iii) To deliver promptly to the Underwriters without charge such
number of the following documents as the Underwriters shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each
amendment thereto (in each case including exhibits); (ii) the
Preliminary Prospectus, the Prospectus and any amended or
supplemented Preliminary Prospectus or Prospectus and (iii)
any document incorporated by reference in the Preliminary
Prospectus or the Prospectus (including exhibits thereto). If
the delivery of a prospectus is required at any time prior to
the expiration of nine months after the Closing Date in
connection with the offering or sale of the Underwritten
Certificates, and if at such time any events shall have
occurred as a result of which the Prospectus as then amended
or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in
order to comply with the Securities Act or the Exchange Act,
the Depositor shall notify the Underwriters and, upon any
Underwriter's request, shall file such document and prepare
and furnish without charge to the Underwriters and to any
dealer in securities as many copies as the Underwriters may
from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which corrects such
statement or omission or effects such compliance, and in case
the Underwriters are required to deliver a Prospectus in
connection with sales of any of the Underwritten Certificates
at any time nine months or more after the Effective Time, upon
the request of the Underwriters but at their expense, the
Depositor shall prepare and deliver to the Underwriters as
many copies as the Underwriters may reasonably request of an
amended or supplemented Prospectus complying with Section
10(a)(3) of the Securities Act.
(iv) To file promptly with the Commission any amendment to the
Registration Statement, the Preliminary Prospectus or the
Prospectus or any supplement to the Prospectus that may, in
the judgment of the Depositor or the Underwriters, be required
by the Securities Act or requested by the Commission. Neither
the Underwriters' consent to nor their distribution of any
amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 6.
(v) To furnish the Underwriters and counsel for the Underwriters,
prior to filing with the Commission, and to obtain the consent
of the Underwriters for the filing of the following documents
relating to the Underwritten Certificates: (i) any
Post-Effective Amendment to the Registration Statement or
supplement to the Prospectus, or document incorporated by
reference in the Prospectus or (ii) the Preliminary Prospectus
and the Prospectus pursuant to the Rules and Regulations.
(vi) To use commercially reasonable efforts, in cooperation with
the Underwriters, to qualify the Underwritten Certificates for
offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States or
elsewhere as the Underwriters may reasonably designate, and
maintain or cause to be maintained such qualifications in
effect for as long as may be required for the distribution of
the Underwritten Certificates. The Depositor will file or
cause the filing of such statements and reports as may be
required by the laws of each jurisdiction in which the
Underwritten Certificates have been so qualified; provided,
however, that the Depositor shall not be required to qualify
to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction
where it is now so subject.
(vii) So long as the Underwritten Certificates shall be outstanding,
the Depositor shall cause the Trustee, pursuant to the Pooling
and Servicing Agreement, to deliver to the Underwriters as
soon as such statements are furnished to the Trustee: (i) the
annual statement as to compliance delivered to the Trustee
pursuant to Section 3.19 of the Pooling and Servicing
Agreement; (ii) the annual statement of a firm of independent
public accountants furnished to the Trustee pursuant to
Section 3.20 of the Pooling and Servicing Agreement; (iii) the
monthly servicing report furnished to the Trustee and (iv) the
monthly reports furnished to the Certificateholders pursuant
to Section 4.02 of the Pooling and Servicing Agreement.
(viii) Unless the Underwriters shall otherwise have given their
written consent, no collateralized mortgage obligations or
other similar securities representing interests in or secured
by other mortgage-related assets originated or owned by the
Seller shall be publicly offered or sold, nor shall the Seller
enter into any contractual arrangements that contemplate the
public offering or sale of such securities, until the earlier
to occur of the termination of the syndicate or the Closing
Date.
(ix) In connection with any transaction contemplated by this
Agreement, the Depositor and each of its affiliates maintain
customary, arm's-length business relationships with each
Underwriter and each of its affiliates, and no fiduciary duty
on the part of any Underwriter or any of its affiliates is
thereby or hereby intended or created, and the express
disclaimer of any such fiduciary relationship on the part of
each Underwriter and each of its affiliates is hereby
acknowledged and accepted by the Depositor and each of its
affiliates.
(x) The Depositor will file or cause to be filed with the
Commission such Free Writing Prospectus that is either an
Issuer Free Writing Prospectus (as defined in Section 5(c)
hereof) or contains Issuer Information as soon as reasonably
practicable after the date of this Agreement, but in any
event, not later than required pursuant to Rules 426 or 433,
respectively, of the Securities Act.
(xi) The Depositor shall not be required to file (A) any Free
Writing Prospectus, if the information included therein 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
(so long as such information does not contain any Issuer
Information).
(xii) The Depositor will (i) prepare and file the report required by
Item 6.05 of Form 8-K within four business days after the
Closing Date if any material pool characteristic in the final
pool at the Closing Date varies by 5% or more from the
description in the Prospectus Supplement, (ii) comply with
required Form 8-K reporting requirements with respect to any
prefunding account and (iii) if static pool information
required with respect to the Underwritten Certificates is
delivered via website, comply with the Rules and Regulations.
The Depositor will be responsible for calculating the
significance percentage of any derivative contract with
respect to the Underwritten Certificates.
(b) Each Underwriter severally represents, warrants, covenants and
agrees with the Depositor as to itself that:
(i) Prior to entering into any Contract of Sale, the Underwriter
shall convey the Preliminary Prospectus to each prospective
investor. The Underwriter shall keep sufficient records to
document its conveyance of the Preliminary Prospectus to each
potential investor prior to the related Contract of Sale.
(ii) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Securities Act, the
Underwriter shall not convey or deliver any written
communication to any person in connection with the initial
offering of the Certificates, unless such written
communication (1) is made in reliance on Rule 134 under the
Securities Act, (2) constitutes a prospectus satisfying the
requirements of Rule 430B under the Securities Act or (3) is a
Free Writing Prospectus.
(iii) An Underwriter may convey a Preliminary Term Sheet to a
potential investor prior to entering into a Contract of Sale
with such investor; provided, however, that (x) such
Underwriter shall not enter into a Contract of Sale with such
investor unless the Underwriter has complied with paragraph
(i) above prior to such Contract of Sale, (y) such Underwriter
shall deliver a copy of the proposed Preliminary Term Sheet to
the Depositor and its counsel prior to the anticipated first
use and shall not convey any such Preliminary Term Sheet to
which the Depositor or its counsel reasonably objects.
(iv) An Underwriter may convey Computational Materials (x) to a
potential investor prior to entering into a Contract of Sale
with such investor; provided, however, that (A) such
Underwriter shall not enter into a Contract of Sale with such
investor unless the Underwriter has complied with paragraph
(i) above prior to such Contract of Sale and (B) such
Computational Materials shall not be disseminated in a manner
reasonably designed to lead to their broad unrestricted
dissemination; provided, however, that if such Computational
Materials are disseminated in a manner reasonably designed to
lead to its broad unrestricted dissemination, such Underwriter
shall file with the Commission such Computational Materials,
and (y) to an investor after a Contract of Sale, provided that
the Underwriter has complied with paragraph (i) above in
connection with such Contract of Sale. The Underwriter shall
keep sufficient records of any conveyance of Computational
Materials to potential or actual investors and shall maintain
such records as required by the Rules and Regulations.
(v) If an Underwriter does not furnish a Free Writing Prospectus
to the Depositor's counsel prior to the scheduled print date
of the Prospectus Supplement, such Underwriter will be deemed
to have represented that it did not convey any Free Writing
Prospectus to any potential investor.
(vi) Each Free Writing Prospectus shall contain legends
substantially similar to the following:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this free writing
prospectus 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 depositor
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 1-8[zz-zzz-zzzz].
This free writing prospectus does not contain all information that is
required to be included in the base prospectus and the prospectus
supplement.
The information in this free writing prospectus supersedes information
contained in any prior similar free writing prospectus relating to
these securities prior to the time of your commitment to purchase.
The asset-backed securities referred to in this free writing prospectus
are being offered when, as and if issued. In particular, you are
advised that asset-backed securities, and the asset pools backing them,
are subject to modification or revision (including, among other things,
the possibility that one or more classes of securities may be split,
combined or eliminated), at any time prior to issuance or availability
of a final prospectus. As a result, you may commit to purchase
securities that have characteristics that may change, and you are
advised that all or a portion of the securities may not be issued that
have the characteristics described in this free writing prospectus. Our
obligation to sell securities to you is conditioned on the securities
having the characteristics described in this free writing prospectus.
If that condition is not satisfied, we will notify you, and neither the
issuer nor [the] [any] underwriter will have any obligation to you to
deliver all or any portion of the securities which you have committed
to purchase, and there will be no liability between us as a consequence
of the non-delivery.
This free writing prospectus is being delivered to you solely to
provide you with information about the offering of the asset-backed
securities referred to in this free writing prospectus and to solicit
an indication of your interest in purchasing such securities, when, as
and if issued. Any such indication of interest will not constitute a
contractual commitment by you to purchase any of the securities.
(vii) Any Computational Materials shall include legends, in addition
to those specified in paragraph (vi) above, substantially
similar to the following:
The information in this free writing prospectus may be based
on preliminary assumptions about the pool assets and the
structure. Any such assumptions are subject to change.
The information in this free writing prospectus may reflect
parameters, metrics or scenarios specifically requested by
you. If so, prior to the time of your commitment to purchase,
you should request updated information based on any
parameters, metrics or scenarios specifically required by you.
Neither the depositor nor any of its affiliates prepared,
provided, approved or verified any statistical or numerical
information presented in this free writing prospectus,
although that information may be based in part on loan level
data provided by the depositor or its affiliates.
(viii) On or before the Closing Date, the Representative shall
execute and deliver to Xxxxxxx Xxxxxxxx & Xxxx LLP a copy of
an original issue discount pricing letter, provided to the
Representative by Xxxxxxx Xxxxxxxx & Xxxx LLP.
(ix) Each Underwriter severally agrees to retain all Free Writing
Prospectuses that it has used and that are not required to be
filed pursuant to this Section 5 for a period of three years
following the initial bona fide offering of the Offered
Certificates.
(c) The following terms shall have the meanings set forth below, unless
the context clearly indicates otherwise:
COMPUTATIONAL MATERIALS: Any Free Writing Prospectus prepared
by the Underwriter that contains only (i) information specified in
paragraph (5) of the definition of ABS Informational and Computational
Materials in Item 1101(a) of Regulation AB or (ii) information that is
not Issuer Information.
CONTRACT OF SALE: The meaning set forth in Rule 159 under the
Securities Act.
DERIVED INFORMATION: Such information, if any, in any Free
Writing Prospectus prepared by any Underwriter that is not contained in
either (i) the Registration Statement, the Base Prospectus, the
Preliminary Prospectus or the Prospectus or amendments or supplements
thereto, taking into account information incorporated therein by
reference or (ii) any Pool Information.
FREE WRITING PROSPECTUS: A "written communication" within the
meaning of Rule 405 under the Securities Act that describes the
Certificates and/or the Mortgage Loans.
ISSUER INFORMATION: Such information as defined in Rule 433(h)
under the Securities Act and which shall not include (i) information
that is merely based on or derived from such information or (ii) any
Excluded Information.
ISSUER FREE WRITING PROSPECTUS: The meaning set forth in Rule
405 of the Securities Act except that (i) Computational Materials shall
not be an Issuer Free Writing Prospectus; (ii) any Free Writing
Prospectus or portion thereof prepared by or on behalf of an
Underwriter that includes any Issuer Information that is not approved
by the Depositor for use therein shall not be an Issuer Free Writing
Prospectus and (iii) no Free Writing Prospectus shall be deemed to be
prepared by an Underwriter on behalf of the Depositor if such Free
Writing Prospectus is not delivered to the Depositor prior to first use
in accordance with Section 5(b)(vi) hereof.
PRELIMINARY TERM SHEET: A Free Writing Prospectus that
contains information described in paragraphs (1) - (3) of the
definition of ABS Informational and Computational Materials in Item
1101(a) of Regulation AB but which does not include Derived
Information.
(d) (i) In the event that any Underwriter or the Depositor becomes
aware that, as of the time of the Contract of Sale, any Free Writing Prospectus
prepared by or on behalf of the Underwriter and delivered to a purchaser of an
Offered Certificate contained any untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading (such Free Writing Prospectus, a "DEFECTIVE FREE WRITING
PROSPECTUS"), the Underwriter or the Depositor shall notify the other parties to
this Agreement thereof within one business day after discovery.
(ii) The party responsible for the information to be
corrected, if requested by the Depositor or an Underwriter, as
appropriate, shall prepare a Free Writing Prospectus with Corrective
Information that corrects the material misstatement in or omission from
the Defective Free Writing Prospectus (such corrected Free Writing
Prospectus, a "CORRECTED FREE WRITING PROSPECTUS").
(iii) The Underwriters shall deliver the Corrected Free
Writing Prospectus to each purchaser of an Offered Certificate which
received the Defective Free Writing Prospectus prior to entering into
an agreement to purchase any Offered Certificates.
(iv) The Underwriters shall notify such purchaser in a
prominent fashion that the prior agreement to purchase Offered
Certificates has been terminated, and of such purchaser's rights as a
result of termination of such agreement.
(v) The Underwriters shall provide such purchaser with an
opportunity to affirmatively agree to purchase such Offered
Certificates on the terms described in the Corrected Free Writing
Prospectus.
(e) Each Underwriter covenants with the Depositor that after the final
Prospectus is available the Underwriter shall not distribute any written
information concerning the Offered Certificates to a prospective purchaser of
Offered Certificates unless such information is preceded or accompanied by the
final Prospectus.
SECTION 6. CONDITIONS TO THE UNDERWRITERS' OBLIGATION. The several
obligations of the Underwriters hereunder to purchase the Underwritten
Certificates pursuant to this Agreement are subject to the following conditions
as of the Closing Date:
(a) Each of the obligations of the Depositor required to be performed
by it on or prior to the Closing Date pursuant to the terms of the Agreements
shall have been duly performed and complied with and all of the representations
and warranties of the Depositor under any of the Agreements shall be true and
correct as of the Closing Date and no event shall have occurred which, with
notice or the passage of time, would constitute a default under any of the
Agreements, and the Underwriters shall have received certificates to the effect
of the foregoing, each signed by an authorized officer of the Depositor.
(b) Prior to the Closing Date, (i) the Depositor shall have received
confirmation of the effectiveness of the Registration Statement and (ii) no stop
order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Depositor, shall be contemplated by the Commission. Any request
of the Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with.
(c) The Mortgage Loans will be acceptable to the following rating
agencies (each, a "Rating Agency"): [Fitch Ratings ("Fitch"), Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies Inc. ("S&P") and
Xxxxx'x Investor Service, Inc. ("Moody's")].
(d) The Underwriters shall have received the following additional
closing documents, in form and substance satisfactory to the Underwriters and
their counsel:
(i) the Agreements and all documents required thereunder, duly
executed and delivered by each of the parties thereto other
than the Underwriters and their affiliates;
(ii) an officer's certificate of an officer of the Seller and an
officer's certificate of an officer of the Depositor, in each
case dated as of the Closing Date and reasonably satisfactory
in form and substance to the Underwriters and counsel for the
Underwriters with resolutions of the applicable board of
directors and a copy of the formation documents of the Seller
or the Depositor, as applicable;
(iii) an opinion of in-house counsel to the Seller, reasonably
satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, dated the Closing Date, as to
various matters;
(iv) an opinion of Xxxxxxx Xxxxxxxx & Xxxx LLP, counsel to the
Depositor, dated the Closing Date, reasonably satisfactory in
form and substance to the Underwriters and counsel for the
Underwriters, as to various matters;
(v) an opinion of [_________], counsel to the Underwriters, dated
the Closing Date, reasonably satisfactory in form and
substance to the Underwriters, as to various matters;
(vi) such opinions of Xxxxxxx Xxxxxxxx & Xxxx LLP, counsel to the
Depositor, in forms reasonably satisfactory to the
Underwriters, their counsel and each Rating Agency, as to such
additional matters not opined to in the opinion delivered
pursuant to clause (iv) above as shall be required for the
assignment of a rating to each Class of Underwritten
Certificates by each Rating Agency (as to each, the "Required
Ratings") as set forth in the Prospectus Supplement;
(vii) a letter from each Rating Agency that it has assigned the
applicable Required Ratings;
(viii) a letter, dated the Closing Date, from each of Xxxxxxx
Xxxxxxxx & Xxxx LLP, counsel to the Depositor, and
[__________], counsel to the Underwriters, providing negative
assurance with respect to the Preliminary Prospectus and the
Prospectus, in each case as of its date and as of the date
hereof;
(ix) letters dated on or before the date on which the Preliminary
Prospectus is dated and conveyed, in form and substance
acceptable to the Underwriters and their counsel and addressed
to the Underwriters, prepared by [__________] (a) regarding
certain numerical information contained or incorporated by
reference in the Preliminary Prospectus and (b) relating to
certain agreed upon procedures as requested by the
Underwriters relating to the Mortgage Loans;
(x) letters dated on or before the date on which the Prospectus is
dated and printed, in form and substance acceptable to the
Underwriters and their counsel and addressed to the
Underwriters, prepared by [__________] (a) regarding certain
numerical information contained or incorporated by reference
in the Prospectus and (b) relating to certain agreed upon
procedures as requested by the Underwriters relating to the
Mortgage Loans;
(xi) an opinion of counsel to the Trustee, dated the Closing Date,
in form and substance reasonably satisfactory to the
Underwriters, their counsel and each Rating Agency; and
(xii) an officer's certificate of an officer of the Trustee, dated
as of the Closing Date, reasonably satisfactory in form and
substance to the Underwriters and their counsel.
(e) All proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto shall be reasonably
satisfactory in form and substance to the Underwriters and their counsel.
(f) The Seller and the Depositor shall have furnished the Underwriters
with such other certificates of its officers or others and such other documents
or opinions as the Underwriters or their counsel may reasonably request.
(g) Subsequent to the execution and delivery of this Agreement none of
the following shall have occurred: (i) trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the over-the-counter
market shall have been suspended or minimum prices shall have been established
on either of such exchanges or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having jurisdiction;
(ii) a banking moratorium shall have been declared by Federal or New York State
authorities; (iii) the United States shall have become engaged in material
hostilities, there shall have been an escalation of such hostilities involving
the United States or there shall have been a declaration of war by the United
States; (iv) a material disruption in settlement or clearing operations shall
occur; or (v) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets of the United States shall be
such) which is material and adverse, and in the case of any of the events
specified in clauses (i) through (v), either individually or together with any
other such event specified in clauses (i) through (v) makes it in the judgment
of the Underwriters, impractical to market the Underwritten Certificates.
(h) There shall not have occurred any development that has caused a
material adverse change in the financial condition or business operations of the
Seller or the Depositor which adverse change makes it impractical to market the
Underwritten Certificates.
(i) The Interest Rate Swap Agreement and the Swap Administration
Agreement shall have been executed and delivered.
(j) If any condition specified in this Section 6 shall have not been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Depositor at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Sections 7, 8 and 19.
SECTION 7. PAYMENT OF EXPENSES. The Depositor agrees to pay:
(i) the costs incident to the authorization, issuance, sale and
delivery of the Certificates and any taxes payable in
connection therewith; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of
the Registration Statement and any amendments and exhibits
thereto and any Issuer Free Writing Prospectus; (iii) the
costs of distributing the Registration Statement as originally
filed and each amendment thereto and any post-effective
amendments thereof (including, in each case, exhibits), the
Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus or any document incorporated by
reference therein and any Issuer Free Writing Prospectus, all
as provided in this Agreement; (iv) the costs of reproducing
and distributing this Agreement; (v) any fees charged by
securities rating services for rating the Underwritten
Certificates; (vi) the cost of accountants' comfort letters
relating to the Preliminary Prospectus and the Prospectus
(except as otherwise agreed in a separate letter agreement
between the Seller and the Underwriters); (vii) all other
costs and expenses incidental to the performance of the
obligations of the Depositor and the Seller (including costs
and expenses of counsel to the Depositor and the Seller) and
(viii) to the extent set forth in the second succeeding
paragraph, the costs and expenses of the Underwriters.
The Underwriters shall be solely responsible for any due diligence
expenses incurred by them, any transfer taxes on the Underwritten Certificates
which they may sell, the expenses of advertising any offering of the
Underwritten Certificates made by the Underwriters, the cost of any accountants'
comfort letters relating to any Computational Materials and the costs and
expenses of counsel to the Underwriters.
If this Agreement is terminated because of a breach of the Depositor of
any covenant or agreement hereunder (other than the failure of the closing
condition set forth in Section 6(h) to be met), the Depositor shall cause the
Underwriters to be reimbursed for all reasonable out-of-pocket expenses,
including fees and disbursements of [__________], counsel for the Underwriters.
SECTION 8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Depositor indemnifies and holds harmless each Underwriter, each
Underwriter's respective officers and directors and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, as follows:
(i) against any and all losses, claims, expenses, damages or
liabilities, joint or several, to which such Underwriter, its
officers, directors or such controlling person may become
subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof including, but not limited to, any loss, claim,
expense, damage or liability related to purchases and sales of
the Underwritten Certificates) arise out of or are based upon
any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the
Preliminary Prospectus, the Prospectus, any Issuer Free
Writing Prospectus or any amendment or supplement thereto, or
arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements made
therein not misleading; and will reimburse each Underwriter
and each such controlling person for any legal or other
expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the
Depositor will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or omission, or alleged
untrue statement or omission, made in any of such documents:
(x) under the defined term "Modeling Assumptions" under the
caption "Yield on the Certificates--Weighted Average Lives,"
the table entitled "--Assumed Mortgage Loan Characteristics"
and the tables entitled "--Percent of Original Certificate
Principal Balance Outstanding" (collectively, the "Excluded
Information"); (y) in reliance upon and in conformity with any
Underwriters' Information; or (z) in any Derived Information,
except in the case of clause (x) or (z) to the extent that any
untrue statement or alleged untrue statement or omission
therein results (or is alleged to have resulted) from an error
or material omission in the information either in the
Preliminary Prospectus or the Prospectus for which the
Depositor is responsible or concerning the characteristics of
the Mortgage Loans furnished by the Seller to the Underwriters
for use in the preparation of any Excluded Information or any
Free Writing Prospectus; provided, however, that no indemnity
shall be provided by either the Depositor or the Seller for
any error that was superseded or corrected by delivery to the
Underwriters of corrected written or electronic information
prior to the first Contract of Sale or for which the Seller or
the Depositor provided written notice of such error to the
Underwriters prior to the first Contract of Sale and the
Underwriters failed to correct such error;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written
consent of the Depositor; and
(iii) against any and all expense whatsoever (including the fees and
disbursements of counsel chosen by any such Underwriter),
reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under clause (i)
or clause (ii) above.
This indemnity agreement will be in addition to any liability which the
Depositor may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless each of the Depositor, each of its directors, each of its
officers and each person, if any, who controls the Depositor within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, against
any and all losses, claims, expenses, damages or liabilities to which the
Depositor or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in (i) Derived Information and (ii) the Registration Statement, the
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or arise out of, or are based upon, the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements made therein not misleading, but with respect to clause (b)(ii)
above, only to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity with
the Underwriters' Information of such Underwriter; and will reimburse any legal
or other expenses reasonably incurred by the Depositor or any such director,
officer or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action. This indemnity agreement will be
in addition to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action described therein, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party of the commencement
thereof; but the omission to so notify the indemnifying party will not relieve
the indemnifying party from any liability that it may have to any indemnified
party otherwise than under this Section 8; provided, however, that the failure
to notify the indemnifying party under this Section 8(c) shall not eliminate the
contribution requirement of the indemnifying party under Section 8(d) unless the
failure to notify under this Section 8(c) is materially adverse to the
indemnifying party. 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 wish to do so, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party under this Section 8, such
indemnifying party shall not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; (iii) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party); or (iv) the indemnifying
party has failed to assume the defense of such action and employ counsel
reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the related Underwriter, if the
indemnified parties under this Section 8 consist of one Underwriter or any of
its controlling persons, by the Representative, if the indemnified parties under
this Section 8 consist of more than one Underwriter or their controlling
persons, or by the Depositor, if the indemnified parties under this Section 8
consist of the Depositor or any of the Depositor's directors, officers or
controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 8(a) and Section 8(b), shall use its good faith efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability (to the extent set forth in Section 8(a) or Section 8(b) as
applicable) by reason of such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
(d) If the indemnification provided for in Section 8(a) or 8(b) is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Depositor on the one hand and the Underwriters on the other from the
offering of the Underwritten Certificates or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Depositor on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the
Depositor on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Depositor bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Depositor or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to above in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of underwriting discounts and commissions
received by such Underwriter. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint. SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
TO SURVIVE DELIVERY. All representations, warranties and agreements contained in
this Agreement or contained in certificates of officers of the Depositor or the
Seller submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the Underwriters
or controlling persons thereof, or by or on behalf of the Depositor or the
Seller, and shall survive delivery of any Underwritten Certificates to the
Underwriters. SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or
more of the Underwriters participating in the public offering of the
Underwritten Certificates shall fail at the Closing Date to purchase the
Underwritten Certificates which it is (or they are) obligated to purchase
hereunder (the "Defaulted Certificates"), then the non-defaulting Underwriters
shall have the right, within 24 hours thereafter, 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 Defaulted Certificates in such
amounts as may be agreed upon and upon the terms herein set forth. If, however,
the Underwriters have not completed such arrangements within such 24-hour
period, then (a) if the aggregate principal amount of Defaulted Certificates
does not exceed 10% of the aggregate principal amount of the Underwritten
Certificates to be purchased pursuant to this Agreement, the non-defaulting
Underwriters named in this Agreement shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all such non-defaulting
Underwriters, or (b) if the aggregate principal amount of Defaulted Certificates
exceeds 10% of the aggregate principal amount of the Underwritten Certificates
to be purchased pursuant to this Agreement, this Agreement shall terminate,
without any liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from the liability with respect to any default of such
Underwriter under this Agreement.
In the event of a default by any Underwriter as set forth in this
Section 10, each of the Underwriters and the Depositor shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
SECTION 11. TERMINATION OF AGREEMENT. The Underwriters may terminate
this Agreement immediately upon notice to the Depositor, at any time at or prior
to the Closing Date if the events set forth in Section 6(h) of this Agreement
shall occur and be continuing, or if any other closing condition set forth in
Section 6 shall not have been fulfilled when required to be fulfilled. In the
event of any such termination, the provisions of Section 7, Section 8, Section
9, Section 14, Section 16 and Section 19 shall remain in effect.
SECTION 12. NOTICES. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent to the
Representative at [__________], [address], Attention: Legal;
(b) if to the Depositor, shall be delivered or sent by mail, telex or
facsimile transmission to care of Boardwalk Mortgage Securities Inc., 0000 Xxxx
& Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000, Facsimile (000) 000-0000,
Attention: General Counsel; and
(c) if to the Seller, shall be delivered or sent by mail, telex or
facsimile transmission to care of Ameriquest Mortgage Company, 0000 Xxxx &
Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000, Facsimile (000) 000-0000,
Attention: General Counsel.
SECTION 13. PERSONS ENTITLED TO THE BENEFIT OF THIS AGREEMENT. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Seller and the Depositor, and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that the representations, warranties, indemnities and agreements
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any of the Underwriters within the
meaning of Section 15 of the Securities Act, and for the benefit of each
Underwriter's respective officers and directors and for the benefit of directors
of the Depositor, officers of the Depositor who have signed the Registration
Statement and any person controlling the Depositor within the meaning of Section
15 of the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
13, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
SECTION 14. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Depositor, the Seller and the Underwriters
contained in this Agreement, or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Underwritten Certificates and shall remain in full force and effect, regardless
of any investigation made by or on behalf of any of them or any person
controlling any of them.
SECTION 15. DEFINITION OF THE TERM "BUSINESS DAY". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange is
open for trading.
SECTION 16. GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York, without regard to principles of conflicts of law other than Section
5-1401 of the New York General Obligations Law which shall govern.
The parties hereto hereby submit to the non-exclusive jurisdiction of
the United States District Court for the Southern District of New York and any
court in the State of New York located in the City and County of New York, and
appellate court from any thereof, in any action, suit or proceeding brought
against it or in connection with this Agreement or any of the related documents
or the transactions contemplated hereunder or for recognition or enforcement of
any judgment, and the parties hereto hereby agree that all claims in respect of
any such action or proceeding may be heard or determined in New York State court
or, to the extent permitted by law, in such federal court. The parties hereto
hereby irrevocably waive, to the fullest extent permitted by law, any and all
rights to trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby.
SECTION 17. COUNTERPARTS. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 18. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
SECTION 19. OBLIGATIONS OF THE SELLER. The Seller agrees with the
Underwriters, for the sole and exclusive benefit of each such Underwriter, each
such Underwriter's officers and directors and each person controlling such
Underwriter within the meaning of the Securities Act, and not for the benefit of
any assignee thereof or any other person or persons dealing with such
Underwriter as follows: in consideration of and as an inducement to their
agreement to purchase the Underwritten Certificates from the Depositor, to
indemnify and hold harmless each Underwriter against any failure by the
Depositor to perform its obligations to the Underwriters hereunder, including,
without limitation, any failure by the Depositor to honor any obligation to any
Underwriter pursuant to Sections 8 and 14 (with respect to the survival of
indemnities) hereof. In the case of any claim against the Seller by any
Underwriter, any officer or director of any Underwriter or any person
controlling any Underwriter, it shall not be necessary for such claimant to
first pursue any remedy from or exhaust any proceedings against the Depositor.
If the foregoing correctly sets forth the agreement among the
Depositor, the Seller and the Underwriters, please indicate your acceptance in
the space provided for the purpose below.
Very truly yours,
BOARDWALK MORTGAGE SECURITIES INC.
By:
------------------------------
Name:
Title:
AMERIQUEST MORTGAGE COMPANY
By:
------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
[ ], acting on its own behalf and as Representative
--------
of the several Underwriters referred to in the foregoing
Agreement
By:
---------------------------
Name:
Title:
SCHEDULE A
EXHIBIT A
UNDERWRITERS' INFORMATION
