EXHIBIT 1.1
BEAR XXXXXXX MORTGAGE SECURITIES INC.
MORTGAGE-BACKED CERTIFICATES
UNDERWRITING AGREEMENT
_______________, 199_
[Name of Underwriter]
[Address]
Dear Sirs:
1. Introduction. Bear Xxxxxxx Mortgage Securities Inc., a
Delaware corporation (the "Company"), from time to time proposes to issue and
sell Mortgage-Backed Certificates ("Certificates") in various series (each a
"Series"), and, within each Series, in various classes, in one or more offerings
on terms determined at the time of sale. The Certificates of each series will be
issued pursuant to a pooling and servicing agreement (each, a "Pooling and
Servicing Agreement") among the Company, as depositor, one or more master
servicers which may include the Company and a third-party trustee (the
"Trustee"). Upon issuance, the Certificates of each series will evidence
undivided interests in the Trust Fund (as defined in the Pooling and Servicing
Agreement) established for such series containing mortgages or, in the event the
Trust Fund, or a portion thereof, constitutes the upper tier of a two-tier real
estate mortgage investment conduit ("REMIC"), the Trust Fund may contain
interests issued by a lower tier trust which will contain mortgages, all as
described in the Prospectus (as defined below). Terms not defined herein which
are defined in the Pooling and Servicing Agreement shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
Whenever the Company determines to make an offering of a
Series of Certificates (an "Offering") through you or an underwriting syndicate
managed or co-managed by you, it will offer to enter into an agreement ("Terms
Agreement") providing for the sale of such Certificates to, and the purchase and
offering thereof by, you and such other co-managers and underwriters, if any,
which have been selected by you and have authorized you to enter into such Terms
Agreement and other related documentation on their behalf (the "Underwriters,"
which term shall include you whether acting alone in the sale of Certificates or
as a co-manager or as a member of an underwriting syndicate). The Terms
Agreement relating to each Offering shall specify the principal amount of
Certificates to be issued and their terms not otherwise specified in the
Pooling and Servicing Agreement, the price at which the Certificates are to be
purchased by each of the Underwriters from the Company and the initial public
offering price or the method by which the price at which the Certificates are to
be sold will be determined. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between you and the Company. Each Offering
governed by this Agreement, as supplemented by the applicable Terms Agreement,
shall inure to the benefit of and be binding upon the Company and each of the
Underwriters participating in the Offering of such Certificates.
The Company hereby agrees with the Underwriters as follows:
2. Representations and Warranties of the Company.
The Company represents and warrants to you as of the date hereof, and to the
Underwriters named in the applicable Terms Agreement as of the date of such
Terms Agreement, as follows:
(a) A registration statement, including a prospectus, and such
amendments thereto as may have been required to the date hereof, relating to the
Certificates and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended ("Act"), have been filed with
the Securities and Exchange Commission ("Commission") and such registration
statement as amended has become effective. Such registration statement as
amended and the prospectus relating to the sale of Certificates constituting a
part thereof as from time to time amended or supplemented (including any
prospectus filed with the Commission pursuant to Rule 424 of the rules and
regulations of the Commission ("Rules and Regulations") under the Act, including
any documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on or before the Effective Date of the Registration
Statement or the date of the Prospectus Supplement, are respectively referred to
herein as the "Registration Statement" and the "Prospectus"; provided, however,
that a supplement to the Prospectus (a "Prospectus Supplement") prepared
pursuant to Section 5(a) hereof shall be deemed to have supplemented the
Prospectus only with respect to the Offering of the Series of Certificates to
which it relates. The conditions of Rule 415 under the Act have been satisfied
with respect to the Company and the Registration Statement.
(b) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all material respects to
the requirements of the Act and the Rules and Regulations, and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and on the date of each Terms Agreement, the Registration Statement
and the Prospectus will conform in all material respects to the requirements of
the Act and the Rules and Regulations, and the Prospectus will not include 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 are made, not misleading; provided,
however, that the foregoing does not apply to (i) statements or omissions in
such documents based upon written information furnished to the Company by any
Underwriter specifically for use therein or (ii) any Current Report (as defined
in Section 5(b) below) or in any amendment thereof or supplement thereto,
incorporated by reference in such Registration Statement or such Prospectus (or
any amendment thereof or supplement thereto).
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus except as otherwise
stated therein, (A) there has been no material adverse change in the condition,
financial or otherwise, earnings, affairs, regulatory situation or business
prospects of the Company whether or not arising in the ordinary course of
business and (B) there have been no transactions entered into by the Company
which are material, other than those in the ordinary course of business.
(d) This Agreement has been, and the Pooling and Servicing
Agreement, when executed and delivered as contemplated hereby and thereby will
have been, duly executed and delivered by the Company and each constitutes, or
will constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against the Company in accordance with its terms,
subject, as to the enforceability of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting the rights of
creditors generally, and to general principles of equity and the discretion of
the court (regardless of whether enforceability of such remedies is considered
in a proceeding in equity or at law).
(e) At the applicable Closing Date, each applicable Terms
Agreement will have been duly authorized, executed and delivered by the Company
and will be a legal, valid and binding obligation of the Company enforceable in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance and other laws affecting the rights of
creditors generally, and to general principles of equity and the discretion of
the court (regardless of whether enforceability of such remedies is considered
in a proceeding in equity or at law).
(f) The issuance of the Certificates has been duly authorized
by the Company and, when such Certificates are executed and authenticated in
accordance with the Pooling and Servicing Agreement and delivered against
payment pursuant to this Agreement, such Certificates will be validly issued and
outstanding; and the Certificates will be entitled to the benefits provided by
the Pooling and Servicing Agreement. The Certificates are in all material
respects in the form contemplated by the Pooling and Servicing Agreement.
(g) Neither the Company nor the Trust Fund is or, as a result
of the offer and sale of the Certificates as contemplated in this Agreement will
become, an "investment company" as defined in the Investment Company Act of
1940, as amended (the "Investment Company Act"), or an "affiliated person" of
any such "investment company" that is registered or is required to be registered
under the Investment Company Act (or an "affiliated person" of any such
"affiliated person"), as such terms are defined in the Investment Company Act.
(h) The representations and warranties made by the Company in
the Pooling and Servicing Agreement and made in any Officer's Certificate of the
Company delivered pursuant to the Pooling and Servicing Agreement will be true
and correct at the time made and on the Closing Date.
3. Purchase, Sale and Delivery of Certificates. Delivery of
and payment for the Certificates shall be made at your office or at such other
location as you shall make known at such time as shall be specified in the
applicable Terms Agreement, each such time being herein referred to as a
"Closing Date." Delivery of the Certificates shall be made by the Company to the
Underwriters against payment of the purchase price specified in the applicable
Terms Agreement in Federal Funds by wire or check. Unless delivery is made
through the facilities of the Depository Trust Company, the Certificates so to
be delivered will be in definitive, fully registered form, in such denominations
and registered in such names as you request, and will be made available for
inspection and packaging at your office at least twenty-four hours prior to the
applicable Closing Date.
4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Certificates for sale to the public as set
forth in the Prospectus.
5. Covenants of the Company. The Company covenants and agrees
with you and the several Underwriters participating in the Offering of any
Series of Certificates that:
(a) In connection with the execution of each Terms Agreement,
the Company will prepare a Prospectus Supplement to be filed under the Act
setting forth the principal amount of Certificates covered thereby and their
terms not otherwise specified in the Prospectus, the price at which the
Certificates are to be purchased by the Underwriters from the Company, either
the initial public offering price or the method by which the price at which the
Certificates are to be sold will be determined, the selling concession and
reallowance, if any, any delayed delivery arrangements, and such other
information as you and the Company deem appropriate in connection with
the offering of the Certificates, but the Company will not file any
amendments to the Registration Statement or any amendments or supplements to
the Prospectus, unless it shall first have delivered copies of such amendments
or supplements to you, and you shall not have objected thereto promptly after
receipt thereof. The Company will advise you or your counsel promptly (i) when
notice is received from the Commission that any post-effective amendment to the
Registration Statement has become or will become effective, and (ii) of any
order or communication suspending or preventing, or threatening to suspend or
prevent, the offer and sale of the Certificates, or of any proceedings or
examinations that may lead to such an order or communication, whether by or of
the Commission or any authority administering any state securities or Blue Sky
law, as soon as the Company is advised thereof, and will use its best efforts to
prevent the issuance of any such order or communication and to obtain as soon as
possible its lifting, if issued.
(b) The Company will cause any Computational Materials and any
Structural Term Sheets (each as defined in Section 8 below) with respect to each
Series of Certificates that are delivered by the Underwriters to the Company
pursuant to Section 8 to be filed with the Commission on a Current Report on
Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") on the business day
immediately following the day on which such Computational Materials and
Structural Term Sheets are delivered to counsel for the Company by any of the
Underwriters prior to 10:30 a.m. (and will use its best efforts to cause such
Computational Materials and Structural Term Sheets to be so filed prior to 2:00
p.m., New York time, on such business day), and will promptly advise you when
such Current Report has been so filed. The Company will cause one Collateral
Term Sheet (as defined in Section 9 below) with respect to an Offering of a
Series that is delivered by any of the Underwriters to the Company in accordance
with the provisions of Section 9 to be filed with the Commission on a Current
Report pursuant to Rule 13a-11 under the Exchange Act on the business day
immediately following the day on which such Collateral Term Sheet is delivered
to counsel for the Company by any of the Underwriters prior to 10:30 a.m. In
addition, if at any time prior to the availability of the related Prospectus
Supplement, any of the Underwriters has delivered to any prospective investor a
subsequent Collateral Term Sheet that reflects, in the reasonable judgment of
such Underwriter and the Company, a material change in the characteristics of
the Mortgage Loans for the related Series from those on which a Collateral Term
Sheet with respect to the related Series previously filed with the Commission
was based, the Company will cause any such Collateral Term Sheet that is
delivered by such Underwriter to the Company in accordance with the provisions
of Section 9 to be filed with the Commission on a Current Report on the business
day immediately following the day on which such Collateral Term Sheet is
delivered to counsel for the Company by such Underwriter prior to 2:00 p.m. In
each case, the Company will promptly advise you when such Current Report has
been so filed. Notwithstanding the four preceding sentences, the Company shall
have no obligation to file any materials provided by any of the Underwriters
pursuant to Sections 8 and 9 which (i) in the reasonable determination of the
Company are not required to be filed pursuant to the Xxxxxx Letters or the PSA
Letter (each as defined in Section 8 below), or (ii) contain erroneous
information or contain any untrue statement of a material fact or, when read in
conjunction with the Prospectus and Prospectus Supplement, omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; it being understood, however, that the Company shall
have no obligation to review or pass upon the accuracy or adequacy of, or to
correct, any Computational Materials or ABS Term Sheets (as defined in Section 9
below) provided by such Underwriter to the Company pursuant to Section 8 or
Section 9 hereof. The Company shall give notice to you and such Underwriter of
its determination not to file any materials pursuant to clause (i) of the
preceding sentence and agrees to file such materials if such Underwriter or you
reasonably object to such determination within one business day after receipt of
such notice.
(c) If at any time when a prospectus relating to the
Certificates is required to be delivered under the Act any event occurs as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company promptly will prepare
and file with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance;
provided, however, that the Company will not be required to file any such
amendment or supplement with respect to any Computational Materials, Structural
Term Sheets or Collateral Term Sheets incorporated by reference in the
Prospectus other than any amendments or supplements of such Computational
Materials or Structural Term Sheets that are furnished to the Company by the
Underwriter pursuant to Section 8(e) hereof or any amendments or supplements of
such Collateral Term Sheets that are furnished to the Company by the Underwriter
pursuant to Section 9(d) hereof which are required to be filed in accordance
therewith.
(d) With respect to each Series of Certificates, the Company
will make generally available to the holders of the Certificates and will
deliver to you, in each case as soon as practicable, an earnings statement
covering the twelve-month period beginning after the date of the Terms Agreement
in respect of such series of Certificates, which will satisfy the provisions of
Section 11(a) of the Act with respect to the Certificates.
(e) The Company will furnish to you copies of the Registration
Statement (two of which will be signed and will include all documents and
exhibits thereto or incorporated by reference therein), each related preliminary
prospectus, the Prospectus, and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as you
request.
(f) The Company will arrange for the qualification of the
Certificates for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as you reasonably designate and will
continue such qualifications in effect so long as reasonably required for the
distribution; provided, however, that the Company shall not be required to
qualify to do business in any jurisdiction where it is not qualified on the date
of the related Terms Agreement or to take any action which would subject it to
general or unlimited service of process in any jurisdiction in which it is not,
on the date of the related Terms Agreement, subject to such service of process.
(g) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement and any Terms Agreement and
will reimburse the Underwriters for any expenses (including fees and
disbursements of counsel and accountants) incurred by them in connection with
qualification of the Certificates and determination of their eligibility for
investment under the laws of such jurisdictions as you designate and the
printing of memoranda relating thereto, for any fees charged by the nationally
recognized statistical rating agencies for the rating of the Certificates, for
the filing fee of the National Association of Securities Dealers, Inc. relating
to the Certificates, if applicable, and for expenses incurred in distributing
preliminary prospectuses to the Underwriters.
(h) During the period when a prospectus is required by law to
be delivered in connection with the sale of the Certificates pursuant to this
Agreement, the Company will file or cause to be filed, on a timely and complete
basis, all documents that are required to be filed by the Company with the
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(i) So long as the Certificates of a Series shall be
outstanding, the Company will deliver to you the annual statement of compliance
delivered to the Trustee pursuant to the Pooling and Servicing Agreement and the
annual statement of a firm of independent public accountants furnished to the
Trustee pursuant to the Pooling and Servicing Agreement as soon as such
statements are furnished to the Trustee.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters named in any Terms Agreement to purchase and pay
for the Certificates will be subject to the accuracy of the representations and
warranties on the part of the Company as of the date hereof, the date of the
applicable Terms Agreement and the applicable Closing Date, to the accuracy of
the statements made in any officers' certificates (each an "Officer's
Certificate") pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) (i) At the time the applicable Terms Agreement is
executed, [ ] and/or any other firm of certified independent public accountants
acceptable to you shall have furnished to you a letter, addressed to you, and in
form and substance satisfactory to you in all respects, stating in effect that
using the assumptions and methodology used by the Company, all of which shall be
described in such letter or the Prospectus Supplement, they have recalculated
such numbers, percentages and weighted average lives set forth in the Prospectus
as you may reasonably request, compared the results of their calculations to the
corresponding items in the Prospectus, and found each such number, percentage,
and weighted average life set forth in the Prospectus to be in agreement with
the results of such calculations. To the extent historical financial delinquency
or related information is included with respect to one or more master servicers,
such letter or letters shall also relate to such information.
(a) (ii) At the Closing Date, ______________ and/or any other
firm of certified independent public accountants acceptable to you shall have
furnished to you a letter, addressed to you, and in form and substance
satisfactory to you in all respects, relating to the extent such information is
not covered in the letter or letters provided pursuant to clause (a)(i), to a
portion of the information set forth on the Mortgage Loan Schedule attached to
the Pooling and Servicing Agreement and the characteristics of the mortgage
loans, as presented in the Prospectus Supplement or the Form 8-K relating
thereto, or if a letter relating to the same information is provided to the
Trustee, indicating that you are entitled to rely upon its letter to the
Trustee.
(b) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have been any
change, or any development involving a prospective change, in or affecting the
business or properties of the Company or any of its affiliates the effect of
which, in any case, is, in your judgment, so material and adverse as to make it
impracticable or inadvisable to proceed with the Offering or the delivery of the
Certificates as contemplated by the Registration Statement and the Prospectus.
All actions required to be taken and all filings required to be made by the
Company under the Act and the Exchange Act prior to the sale of the Certificates
shall have been duly taken or made; and prior to the applicable Closing Date, 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 Company or you, shall be contemplated by the Commission
or by any authority administering any state securities or Blue Sky law.
(c) Unless otherwise specified in any applicable Terms
Agreement for a Series, the Certificates shall be rated in one of the four
highest grades by one or more nationally recognized statistical rating agencies
specified in said Terms Agreement.
(d) You shall have received the opinion of counsel for the
Company, dated the applicable Closing Date, to the effect that:
(i) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its assets and conduct its business as
described in the Prospectus, and the Company is duly qualified as a foreign
corporation to transact business and is in good standing under the laws of the
State of New York. The Company has no subsidiaries.
(ii) Each of this Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company and assuming due and
valid authorization and execution by the other parties thereto, constitutes the
legal, valid and binding obligation of the Company enforceable in accordance
with its terms, subject to the effect of bankruptcy, insolvency, moratorium,
fraudulent conveyance and other similar laws relating to or affecting creditors'
rights generally and court decisions with respect thereto and to the application
of equitable principles in any proceeding, whether at law or in equity. Such
counsel's opinion may be qualified, in the case of the indemnity provisions in
this Agreement, to applicable law or judicial policy.
(iii) The Pooling and Servicing Agreement has been duly and validly
authorized, executed and delivered by the Company and assuming due and valid
authorization and execution by the other parties thereto, constitutes the valid
and binding agreement of the Company, enforceable in accordance with its terms,
subject to the effect of bankruptcy, insolvency, moratorium, fraudulent
conveyance and other similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto and to the application of
equitable principles in any proceeding, whether at law or in equity.
(iv) The Certificates are in a form authorized by the Pooling and
Servicing Agreement, have been duly and validly authorized by all necessary
corporate action and, when executed and authenticated as specified in the
Pooling and Servicing Agreement and delivered against payment pursuant to this
Agreement and the related Terms Agreement, will be validly issued and
outstanding; and the Certificates will be entitled to the benefits of the
Pooling and Servicing Agreement.
(v) The Registration Statement has become effective under the Act,
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under the
Act, and the Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue dates, complied as
to form in all material respects with the requirements of the Act and the Rules
and Regulations thereunder; such counsel has no reason to believe that either
the Registration Statement as of its effective date contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or the Prospectus as of the date of any Terms Agreement contained
any untrue statement of a material fact or omitted 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 (it being understood that such counsel need express no opinion as to
the financial statements or other financial data or notes thereto or any
statistical or tabular data contained or incorporated by reference in the
Registration Statement or the Prospectus).
(vi) The statements in the Prospectus and Prospectus Supplement under
the heading "Certain Federal Income Tax Consequences," to the extent that they
constitute matters of law or legal conclusions, have been prepared or reviewed
by such counsel and provide a fair summary of such law or conclusions; the
statements in the Prospectus to the extent modified by the statements in the
Prospectus Supplement under the headings "Summary of Terms," "Description of the
Certificates" and "The Pooling and Servicing Agreement" and such other headings
as you may request, insofar as such statements constitute a summary of the
proposed transaction and of the provisions of the Certificates or the Pooling
and Servicing Agreement, constitute a fair and accurate summary of such
transaction and provisions.
(vii) Neither the Company nor the Trust Fund is, or as a result of the
offer and sale of the Certificates as contemplated in the Prospectus and in this
Agreement will become, an "investment company" as defined in the Investment
Company Act, or an "affiliated person" of any such "investment company" that is
registered or is required to be registered under the Investment Company Act (or
an "affiliated person" of any such "affiliated person"), as such terms are
defined in the Investment Company Act.
(viii) The Certificates offered pursuant to the Registration Statement and
indicated as such in the Prospectus Supplement will be mortgage related
securities, as defined in Section 3(a)(41) of the Exchange Act, so long as such
Certificates are rated in one of the two highest grades by at least one
nationally recognized statistical rating agency.
(ix) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
Each opinion also shall relate to such other matters as may be
specified in the related Terms Agreement or as to which you reasonably may
request. In rendering any such opinion, counsel for the Company may rely on
certificates of responsible officers of the Company, the Trustee, and public
officials or, as to matters of law other than New York or Federal law, on
opinions of other counsel (copies of which opinions shall be delivered to you),
provided that, in cases of opinions of other counsel, counsel for the Company
shall include in its opinion a statement of its belief that both it and you are
justified in relying on such opinions.
(e) You shall have received from counsel for the Company a
letter, dated as of the Closing Date, stating that you may rely on the opinions
delivered by such firm under the Pooling and Servicing Agreement and to the
rating agency or agencies rating the Certificates as if such opinions were
addressed directly to you (copies of which opinions shall be delivered to you).
(f) You shall have received from counsel for the Underwriters,
if such counsel is different from counsel to the Company, such opinion or
opinions, dated as of the Closing Date, with respect to the validity of the
Certificates, the Registration Statement, the Prospectus and other related
matters as the Underwriters may require, and the Company shall have furnished to
such counsel such documents as they may have requested from it for the purpose
of enabling them to pass upon such matters.
(g) You shall have received Officer's Certificates signed by
such of the principal executive, financial and accounting officers of the
Company as you may request, dated as of the Closing Date, in which such
officers, to the best of their knowledge after reasonable investigation, shall
state that the representations and warranties of the Company in this Agreement
are true and correct; that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Closing Date; that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated; that, subsequent to the respective dates as
of which information is given in the Prospectus, and except as set forth or
contemplated in the Prospectus, there has not been any material adverse change
in the general affairs, business, key personnel, capitalization, financial
condition or results of operations of the Company; that except as otherwise
stated in the Prospectus, there are no material actions, suits or proceedings
pending before any court or governmental agency, authority or body or, to their
knowledge, threatened, affecting the Company or the transactions contemplated by
this Agreement; and that attached thereto are true and correct copies of a
letter or letters from the one or more nationally recognized statistical rating
agencies specified in the applicable Terms Agreement confirming that, unless
otherwise specified in said Terms Agreement, the Certificates have been rated
in one of the four highest grades by each of such agencies and that such rating
has not been lowered since the date of such letter.
The Company will furnish you with such conformed copies of
such opinions, certificates, letters and documents as you reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects with respect to a particular
Offering when and as provided in this Agreement and the related Terms Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement and the related Terms Agreement shall not be in all material respects
reasonably satisfactory in form and substance to you, this Agreement (with
respect to the related Offering) and the related Terms Agreement and all
obligations of the Underwriters hereunder (with respect to the related Offering)
and thereunder may be canceled at, or at any time prior to, the related Closing
Date by the Underwriter. Notice of such cancellation shall be given to the
Company in writing, or by telephone or telegraph confirmed in writing.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act against
any and all losses, claims, damages, liabilities and expenses whatsoever
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange 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 a material fact contained in the Registration Statement
relating to the applicable Series of Certificates (the "Applicable Registration
Statement") as it became effective or in any amendment or supplement thereof, or
in the Applicable Registration Statement or the related Prospectus, or in any
amendment thereof, or arise out of or are based upon the omission or alleged
omission (in the case of any Computational Materials or ABS Term Sheets in
respect of which the Company agrees to indemnify the Underwriters, as set forth
below, when such are read in conjunction with the related Prospectus and
Prospectus Supplement) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that (i) the Company 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
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein (A) in reliance upon and in conformity with written
information furnished to the Company as herein stated by or on behalf of the
Underwriters specifically for use in connection with the preparation thereof or
(B) in any Current Report or any amendment or supplement thereof, except to the
extent that any untrue statement or alleged untrue statement therein or omission
therefrom results (or is alleged to have resulted)
directly from an error (a "Mortgage Pool Error") in the information
concerning the characteristics of the Mortgage Loans furnished by the Company to
the Underwriters in writing or by electronic transmission that was used in the
preparation of either (x) any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) included in such Current Report (or amendment
or supplement thereof) or (y) any written or electronic materials furnished to
prospective investors on which the Computational Materials (or amendments or
supplements) were based, (ii) such indemnity with respect to any Corrected
Statement (as defined below) in such Prospectus (or Prospectus Supplement
thereto) shall not inure to the benefit of the Underwriters (or any person
controlling any Underwriter) from whom the person asserting any loss, claim,
damage or liability purchased the Certificates of the related Series that are
the subject thereof if such person did not receive a copy of a Prospectus
Supplement to such Prospectus at or prior to the confirmation of the sale of
such Certificates and the untrue statement or omission of a material fact
contained in such Prospectus (or Prospectus Supplement thereto) was corrected (a
"Corrected Statement") in such other supplement and such supplement was
furnished by the Company to the Underwriters prior to the delivery of such
confirmation, and (iii) such indemnity with respect to any Mortgage Pool Error
shall not inure to the benefit of the Underwriters (or any person controlling
any Underwriter) from whom the person asserting any loss, claim, damage or
liability received any Computational Materials (or any written or electronic
materials on which the Computational Materials are based) or ABS Term Sheets
that were prepared on the basis of such Mortgage Pool Error, if, prior to the
time of confirmation of the sale of the applicable Series of Certificates to
such person, the Company notified the Underwriters in writing of the Mortgage
Pool Error or provided in written or electronic form information superseding or
correcting such Mortgage Pool Error (in any such case, a "Corrected Mortgage
Pool Error"), and the Underwriters failed to notify such person thereof or to
deliver to such person corrected Computational Materials (or underlying written
or electronic materials) or ABS Term Sheets. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) The Underwriters severally, and not jointly, agree to
indemnify and hold harmless the Company, each of the directors of the
Company, each of the officers of the Company who shall have signed the
Applicable Registration Statement, and each other person, if any, who controls
the Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, against any losses, claims, damages, liabilities and expenses
whatsoever (including but not limited to attorneys' fees and any and all
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon (A) any untrue
statement or alleged untrue statement of a material fact contained in the
Applicable Registration Statement, as originally filed or any amendment thereof,
or any related preliminary prospectus or the Prospectus, 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 not misleading, in each case to the
extent, but only to the extent, that any such loss, claim, damage, liability or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company, by or on
behalf of such Underwriter expressly for use therein; or (B) any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof) furnished to
the Company by such Underwriter pursuant to Section 8 and incorporated by
reference in such Registration Statement or the related Prospectus, Prospectus
Supplement or any amendment or supplement thereof (except that no such indemnity
shall be available for any losses, claims, damages or liabilities, or actions in
respect thereof resulting from any Mortgage Pool Error, other than a Corrected
Mortgage Pool Error). This indemnity will be in addition to any liability which
the Underwriters may otherwise have. The Company acknowledges that, unless
otherwise set forth in the applicable Terms Agreement, the statements set forth
in the last paragraph of the cover page and under the caption "Method of
Distribution" and the stabilization legend required by Item 502(d)(1) under
Regulation S-K of the Act included in the Prospectus Supplement relating to a
Series of Certificates constitute the only information furnished in writing by
or on behalf of any Underwriter expressly for use in the Applicable Registration
Statement or the Prospectus or in any amendment thereof or supplement thereto,
as the case may be (other than any Computational Materials or ABS Term Sheets
(or amendments or supplements thereof) furnished to the Company by such
Underwriter), and each Underwriter confirms, on its behalf, that such statements
are correct.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent that it
has been prejudiced in any material respect by such failure or from any
liability which it may have otherwise). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. Anything in
this subsection to the contrary notwithstanding, an indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent; provided, however, that such consent was not unreasonably withheld.
(d) In order to provide for contribution in circumstances in
which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable, on grounds of public policy or otherwise, from the
Company or the Underwriters or is insufficient to hold harmless a party
indemnified thereunder, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, claims, damages, liabilities and expenses
suffered by the Company any contribution received by the Company from persons,
other than the Underwriters, who may also be liable for contribution, including
persons who control the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, officers of the Company who signed the
Applicable Registration Statement and directors of the Company) to which the
Company and the Underwriters may be subject (i) in the case of any losses,
claims, damages and liabilities (or actions in respect thereof) which do not
arise out of or are not based upon any untrue statement or omission of a
material fact in any Computational Materials or ABS Term Sheets (or any
amendments or supplements thereof), in such proportions as is appropriate to
reflect the relative benefits received by the Company on one hand and the
Underwriters on the other from the Offering of the Certificates as to which such
loss, liability, claim, damage or expense is claimed to arise or, if such
allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in Section 7(c) hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company on one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations
or (ii) in the case of any losses, claims, damages and liabilities (or actions
in respect thereof) which arise out of or are based upon any untrue statement or
omission of a material fact in any Computational Materials or ABS Term Sheets
(or any amendments or supplements thereof) or in any written or electronic
materials distributed to prospective investors on which the Computational
Materials are based, in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the Underwriter that furnished
such Computational Materials or ABS Term Sheets on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations; provided, however, that in no case shall such
Underwriter be responsible under this subparagraph (ii) for any amount in excess
of the aggregate Purchase Price for the Offered Certificates.
The relative benefits received by the Company on one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
(x) the total proceeds from the Offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and (y) the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the Terms Agreement in respect of the
Offering of the Certificates as to which such loss, liability, claim, damage or
expense is claimed to arise. The relative fault of the Company on one hand and
the Underwriters on the other shall be determined by reference to, among other
things, (A) in the case of clause (i) of the preceding paragraph, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on one hand or the Underwriters on the other, (B) in the case of clause (ii) of
the preceding paragraph, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to any untrue statement or omission of a material fact in any
Computational Materials or ABS Term Sheets (or any amendments or supplements
thereof) or in any written or electronic materials distributed by the applicable
Underwriter to prospective investors on which the Computational Materials are
based, and (C) in the case of either clause (i) or clause (ii) of the preceding
paragraph, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this Section
7(d), (x) except as otherwise provided in Section 7(d)(ii), in no case shall the
Underwriters be liable or responsible for any amount in excess of the
underwriting discount set forth in the Terms Agreement relating to the
Certificates as to which such losses, claims, damages, liabilities or expenses
are claimed to arise, and (y) 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 misrepre
sentation. For purposes of this Section 7(d), each person, if any, who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20(a) of
the Exchange Act shall have the same rights to contribution as such Underwriter,
and each person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, each officer of the Company
who shall have signed the Applicable Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clauses (i) and (ii) of this Section 7(d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section
7(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 7(d) or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its consent;
provided, however, that such consent was not unreasonably withheld.
8. Computational Materials and Structural Term Sheets. (a) Not later
than 2:00 p.m., New York time, on the business day before the date on which
the Current Report relating to the Certificates of a Series is required to be
filed by the Company with the Commission pursuant to Section 5(b) hereof, you
and any other applicable Underwriter shall deliver to the Company, and unless
otherwise agreed to by the Company, in a form reasonably convertible to an XXXXX
filing format, a copy of all materials provided by the Underwriters to
prospective investors in such Certificates which constitute (i) "Computational
Materials", within the meaning of the no-action letter dated May 20, 1994 issued
by the Division of Corporation Finance of the Commission to Xxxxxx, Peabody
Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated, and Xxxxxx
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Xxxxxx Letters") and the filing of such
material is a condition of the relief granted in such letter (such materials
being the "Computational Materials"), and (ii) "Structural Term Sheets" within
the meaning of the no-action letter dated February 17, 1995 issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (the "PSA Letter") and the filing of such material is a condition of
the relief granted in such letter (such materials being the "Structural Term
Sheets"). Each delivery of Computational Materials and Structural Term Sheets to
the Company by you and any other applicable Underwriter pursuant to this
paragraph (a) shall be effected by delivering a copy of such materials to
counsel for the Company on behalf of the Company at the address specified by the
Company and one copy of such materials to the Company.
(b) You and each other Underwriter, by virtue of its having executed
and delivered the related Terms Agreement, which shall incorporate this Section
8(b) by reference, represents and warrants to and agrees with the Company, as of
the date of the related Terms Agreement and as of the Closing Date, that:
(i) the Computational Materials
furnished to the Company pursuant to Section 8(a)
constitute (either in original, aggregated or
consolidated form) all of the materials furnished to
prospective investors by such Underwriter prior to
the time of delivery thereof to the Company that are
required to be filed with the Commission with respect
to the Offering of the Certificates in accordance
with the Xxxxxx Letters, and such Computational
Materials comply with the requirements of the Xxxxxx
Letters;
(ii) the Structural Term Sheets
furnished to the Company pursuant to Section 8(a)
constitute all of the materials furnished to
prospective investors by such Underwriter prior to
the time of delivery thereof to the Company that are
required to be filed with the Commission as
"Structural Term Sheets" with respect to the related
Offering of the Certificates in accordance with the
PSA Letter, and such Structural Term Sheets comply
with the requirements of the PSA Letter;
(iii) on the date any such
Computational Materials or Structural Term Sheets
with respect to the Offering of the Certificates (or
any written or electronic materials furnished to
prospective investors on which the Computational
Materials are based) were last furnished to each
prospective investor and on the date of delivery
thereof to the Company pursuant to Section 8(a) and
on the related Closing Date, such Computational
Materials (or such other materials) or Structural
Term Sheets did not and will not include any untrue
statement of a material fact or, when read in
conjunction with the related Prospectus and
Prospectus Supplement, omit to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading; and
(iv) all Computational Materials (or
underlying materials distributed to prospective
investors on which the Computational Materials were
based) or Structural Term Sheets furnished to
prospective investors contained and will contain a
legend, prominently displayed on the first page
thereof, to the effect that the Company has not
prepared, reviewed or participated in the preparation
of such materials and is not responsible for the
accuracy thereof.
Notwithstanding the foregoing, you and each such Underwriter make no
representation or warranty as to whether any Computational Materials or
Structural Term Sheets (or any written or electronic materials on which the
Computational Materials are based) included or will include any untrue statement
resulting directly from any Mortgage Pool Error (except any Corrected Mortgage
Pool Error, with respect to materials prepared after the receipt by the
Underwriters from the Company of notice of such Corrected Mortgage Pool Error or
materials superseding or correcting such Corrected Mortgage Pool Error).
(c) Each Underwriter delivering Computational Materials shall cause a
firm of public accountants to furnish to the Company a letter, dated as of the
date on which such Underwriter delivers any Computational Materials (which term
shall be deemed to include, for purposes of this paragraph (c), calculated
statistical information delivered to prospective investors in the form of a
Structural Term Sheet) to the Company pursuant to Section 8(a), in form and
substance satisfactory to the Company, stating in effect that they have verified
the mathematical accuracy of any calculations performed by such Underwriter and
set forth in such Computational Materials.
(d) The Underwriters acknowledge and agree that the Company has
not authorized and will not authorize the distribution of any Computational
Materials (or any written or electronic materials on which the Computational
Materials are based) or Structural Term Sheets to any particular prospective
investor, and agrees that any Computational Materials or Structural Term Sheets
with respect to any Series of Certificates furnished to prospective investors
shall include a disclaimer in the form described in paragraph (b) (iv) above.
The Underwriters agree that they will not represent to prospective investors
that any Computational Materials or Structural Term Sheets were prepared or
disseminated on behalf of the Company.
(e) If, at any time when a prospectus relating to the Certificates of a
Series is required to be delivered under the Act, it shall be necessary to amend
or supplement the related Prospectus or Prospectus Supplement as a result of an
untrue statement of a material fact contained in any Computational Materials or
Structural Term Sheets provided by an Underwriter pursuant to this Section 8 or
the omission to state therein a material fact required, when considered in
conjunction with the related Prospectus and Prospectus Supplement, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the related Prospectus and Prospectus Supplement, not misleading, or if it
shall be necessary to amend or supplement any Current Report relating to any
Computational Materials or Structural Term Sheets to comply with the Act or the
rules thereunder, such Underwriter promptly will prepare and furnish to the
Company for filing with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Such Underwriter will deliver an Officer's Certificate to the
Company representing and warranting to the Company that, as of the date of
delivery of such amendment or supplement to the Company, such amendment or
supplement will not include any untrue statement of a material fact or, when
read in conjunction with the related Prospectus and Prospectus Supplement, omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that such Underwriter will
make no representation or warranty as to whether any such amendment or
supplement will include any untrue statement resulting directly from any
Mortgage Pool Error (except any Corrected Mortgage Pool Error, with respect to
any such amendment or supplement prepared after the receipt by such Underwriter
from the Company of notice of such Corrected Mortgage Pool Error or materials
superseding or correcting such Corrected Mortgage Pool Error). The Company shall
have no obligation to file such amendment or supplement if (i) the Company
determines that such amendment or supplement contains any untrue statement of a
material fact or, when read in conjunction with the related Prospectus and
Prospectus Supplement, omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to review or pass
upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by such Underwriter to the Company pursuant to this
paragraph (e) or (ii) the Company reasonably determines that such filing is not
required under the Act and such Underwriter does not object as provided below.
The Company shall give notice to such Underwriter of its determination not to
file an amendment or supplement pursuant to clause (ii) of the preceding
sentence and agrees to file such amendment or supplement if such Underwriter
reasonably objects to such determination within one business day after receipt
of such notice.
9. Collateral Term Sheets. (a) Prior to the delivery of any "Collateral
Term Sheet" within the meaning of the PSA Letter, the filing of which
material is a condition of the relief granted in such letter (such material
being the "Collateral Term Sheets"), to a prospective investor in the
Certificates, the applicable Underwriter shall notify the Company and its
counsel by telephone of its intention to deliver such materials and the
approximate date on which the first such delivery of such materials is expected
to occur. Not later than 10:30 a.m., New York time, on the business day
immediately following the date on which any Collateral Term Sheet was first
delivered to a prospective investor in the Certificates of an offered series,
such applicable Underwriter shall deliver to the Company, and unless otherwise
agreed to by the Company, in a form reasonably convertible to an XXXXX format, a
complete copy of all materials provided by such Underwriter to prospective
investors in such Certificates which constitute "Collateral Term Sheets." Each
delivery of a Collateral Term Sheet to the Company pursuant to this paragraph
(a) shall be effected by delivering a copy of such materials to counsel for the
Company on behalf of the Company at the address specified by the Company and one
copy of such materials to the Company. (Collateral Term Sheets and Structural
Term Sheets are, together, referred to herein as "ABS Term Sheets.") At the time
of each such delivery, such Underwriter shall indicate in writing that the
materials being delivered constitute Collateral Term Sheets, and, if there has
been any prior such delivery with respect to the related Series, shall indicate
whether such materials differ in any material respect from any Collateral Term
Sheets previously delivered to the Company with respect to such Series pursuant
to this Section 9(a) as a result of the occurrence of a material change in the
characteristics of the related Mortgage Loans.
(b) You and each other Underwriter, by virtue of its having executed
and delivered the related Terms Agreement, which shall incorporate this Section
9(b) by reference, represents and warrants to and agrees with the Company as of
the date of the related Terms Agreement and as of the Closing Date, that:
(i) The Collateral Term Sheets furnished to the
Company pursuant to Section 9(a) constitute all of the
materials furnished to prospective investors by such
Underwriter prior to time of delivery thereof to the Company
that are required to be filed with the Commission as
"Collateral Term Sheets" with respect to the related Offering
of the Certificates in accordance with the PSA Letter, and
such Collateral Term Sheets comply with the requirements of
the PSA Letter;
(ii) On the date any such Collateral Term Sheets with
respect to the Offering of the Certificates were last
furnished to each prospective investor and on the date of
delivery thereof to the Company pursuant to Section 9(a) and
on the related Closing Date, such Collateral Term Sheets did
not and will not include any untrue statement of a material
fact or, when read in conjunction with the Prospectus and
Prospectus Supplement, omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; and
(iii) such Underwriter has not represented to any
prospective investor that any Collateral Term Sheets with
respect to any Series were prepared or disseminated on behalf
of the Company, and, except as otherwise disclosed by such
Underwriter to the Company in writing prior to the date
hereof, all Collateral Term Sheets previously furnished to
prospective investors included a disclaimer to the effect set
forth in Section 8(b)(iv).
Notwithstanding the foregoing, you and each such Underwriter make no
representation or warranty as to whether any Collateral Term Sheet included or
will include any untrue statement or material omission resulting directly from
any Mortgage Pool Error (except any Corrected Mortgage Pool Error, with respect
to materials prepared after the receipt by such Underwriter from the Company of
notice of such Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error).
(c) Each Underwriter delivering Collateral Term Sheets acknowledges
and agrees that any Collateral Term Sheets with respect to any Series of
Certificates furnished to prospective investors from and after the date hereof
shall include a disclaimer to the effect set forth in Section 8(d) hereof, and
to the effect that the information contained in such materials supersedes the
information contained in any prior Collateral Term Sheet with respect to such
Series of Certificates being offered and will be superseded by the description
of the related Mortgage Loans in the related Prospectus Supplement. The
Underwriters agree that they will not represent to any prospective investors
that any Collateral Term Sheets were prepared or disseminated on behalf of the
Company.
(d) If, at any time when a prospectus relating to the Certificates of a
Series is required to be delivered under the Act, it shall be necessary to amend
or supplement the related Prospectus as a result of an untrue statement of a
material fact contained in any Collateral Term Sheets provided by an Underwriter
pursuant to this Section 9 or the omission to state therein a material fact
required, when considered in conjunction with the related Prospectus and
Prospectus Supplement, to be stated therein or necessary to make the statements
therein, when read in conjunction with the related Prospectus and Prospectus
Supplement, not misleading, or if it shall be necessary to amend or supplement
any Current Report relating to any Collateral Term Sheets to comply with the Act
or the rules thereunder, such Underwriter promptly will prepare and furnish to
the Company for filing with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Such Underwriter will deliver an Officer's Certificate to the
Company representing and warranting to the Company that, as of the date of
delivery of such amendment or supplement to the Company, such amendment or
supplement will not include any untrue statement of a material fact or, when
read in conjunction with the related Prospectus and Prospectus Supplement, omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, such Underwriter will make
no representation or warranty as to whether any such amendment or supplement
will include any untrue statement resulting directly from any Mortgage Pool
Error (except any Corrected Mortgage Pool Error, with respect to any such
amendment or supplement prepared after the receipt by such Underwriter from the
Company of notice of such Corrected Mortgage Pool Error or materials superseding
or correcting such Corrected Mortgage Pool Error). The Company shall have no
obligation to file such amendment or supplement if the Company determines that
(i) such amendment or supplement contains any untrue statement of a material
fact or, when read in conjunction with the related Prospectus and Prospectus
Supplement, omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; it being understood,
however, that the Company shall have no obligation to review or pass upon the
accuracy or adequacy of, or to correct, any such amendment or supplement
provided by such Underwriter to the Company pursuant to this paragraph (d) or
(ii) such filing is not required under the Act. The Company shall give notice to
such Underwriter of its determination not to file an amendment or supplement
pursuant to clause (ii) of the preceding sentence.
10. Default of Underwriters. If any Underwriter or
Underwriters participating in an Offering of Certificates default in their
obligations to purchase Certificates hereunder and under the Terms Agreement and
the aggregate purchase price of Certificates which such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the
aggregate purchase price of the Certificates then being purchased, you may make
arrangements satisfactory to the Company for the purchase of such Certificates
by other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective total commitments as set forth in
the applicable Terms Agreement (for all classes of Certificates), to purchase
the Certificates which such defaulting Underwriter or Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so default and the
aggregate purchase price of Certificates with respect to which such default or
defaults occur is more than 10% of the aggregate purchase price of Certificates
then being purchased, and arrangements satisfactory to you and the Company for
the purchase of such Certificates by other persons are not made within 36 hours
after such default, the Terms Agreement as to which such offering relates will
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except as provided in Section 11. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties, and other
statements of the Company or its officers 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, or statement as to the result thereof,
made by or on behalf of any Underwriter or the Company or any of its officers or
directors or any controlling person, and will survive delivery of and payment
for the Certificates and any termination of this Agreement or any Terms
Agreement, including any termination pursuant to Section 10.
12. Termination. You shall have the right to terminate any
Terms Agreement at any time prior to the applicable Closing Date if any
domestic or international event or act or occurrence has materially disrupted,
or in your opinion will in the immediate future materially disrupt, securities
markets; or if trading on the New York or American Stock Exchanges shall have
been suspended, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities shall have been required on the New
York or American Stock Exchanges by the New York or American Stock Exchanges or
by order of the Commission or any other governmental authority having
jurisdiction; or if the United States shall have become involved in a war or
major hostilities; or if a banking moratorium has been declared by a state or
Federal authority, or if a banking moratorium in foreign exchange trading by
major international banks or persons has been declared; or if any new
restriction materially and adversely affecting the distribution of the series of
Certificates as to which such Terms Agreement relates shall have become
effective; or if there shall have been such change in the market for securities
in general or in political, financial or economic conditions as in your judgment
would be so materially adverse as to make it inadvisable to proceed with the
Offering, sale and delivery of the Series of Certificates as to which such Terms
Agreement relates on the terms contemplated in such Terms Agreement. Any notice
of termination pursuant to this Section 12 shall be by telephone, telex, or
telegraph, confirmed in writing by letter.
13. Notices. All communications hereunder will be in writing,
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to you at _______________ Attention: _______________ or if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at
_____________, Attention: _____________; provided, however, that any notice to
an Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed to
such Underwriter at the address furnished by it.
14. Successors. This Agreement and the Terms Agreement will
inure to the benefit of and be binding upon the parties hereto and thereto, and
their respective successors and the officers and directors and controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder or thereunder.
15. Representation of Underwriters. You will act for the
several Underwriters in connection with each Offering of Certificates governed
by this Agreement, and any action under this Agreement and any Terms Agreement
taken by you will be binding upon all the Underwriters identified in such Terms
Agreement.
16. Construction. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to principles of conflict of laws.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
BEAR XXXXXXX MORTGAGE SECURITIES
INC.
By: __________________________________
Name:
Title:
The foregoing Underwriting Agreement
hereby is confirmed and accepted
as of the date first above written.
[------------------------]
By:___________________________
Name:
Title:
EXHIBIT A
BEAR XXXXXXX MORTGAGE SECURITIES INC.
Mortgage-Backed Certificates
FORM OF TERMS AGREEMENT
Dated: _________, 199_
To: _______________ [AND _____________]
Re: Underwriting Agreement dated __________, 199_
Series Designation: Series 199_ - _
Class Designation Schedule:
Terms of the Certificates:
Original
Principal Interest Price to
Class Amount Rate Public(1)(2)
----------------------------
(1) Do not include if the Certificates will be offered from time to time by the
Underwriter in negotiated transactions at varying prices to be determined at the
time of sale.
(2) Plus accrued interest, if any, at the applicable rate from _____________ .
Distribution Dates: The ____ day of each month or, if such ____ day is not a
business day, the next succeeding business day commencing ________________ .
Certificate Rating:
Mortgage Assets: The initial amounts to be included in any Reserve Account and
other accounts are as set forth, and the Mortgage Loans to be included in the
Trust Fund are as described, in Annex A hereto.
Purchase Price: The aggregate purchase price payable by the Underwriter for
the Certificates covered by this Agreement will be $_________________.
[Purchase price may also be separately stated by class.]
Credit Enhancement:
[Include pool policies, letters of credit, bonds, subordination and similar
arrangements.]
Closing Date: ______, 199_, ____ a.m., N.Y. time
The undersigned, agrees, subject to the terms and provisions of the
above-referenced Underwriting Agreement, which is incorporated herein in its
entirety and made a part hereof, to purchase the respective principal amounts of
the Classes of the above-referenced Series of Certificates set forth [herein]
[on Schedule I attached hereto].
[UNDERWRITER].
By: _________________________
Name:
Title:
[ADDITIONAL UNDERWRITERS]
By: __________________________
Name:
Title:
Accepted:
BEAR XXXXXXX MORTGAGE SECURITIES INC.
By: _______________________________________
Name:
Title:
Schedule I (for multiple underwriters)
Underwriters
Name Class Class Class Class Class
[Underwriter] $ $ $ $ $
[Other
Underwriters]
------ ------ ------ ------ ------
Total
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