XXXXXX MAC MORTGAGE SECURITIES CORPORATION
GUARANTEED AGRICULTURAL MORTGAGE-BACKED SECURITIES
(Issuable in Series)
GUARANTEED BY
FEDERAL AGRICULTURAL MORTGAGE CORPORATION
FORM OF UNDERWRITING AGREEMENT
[UNDERWRITER] [DATE]
Ladies and Gentlemen:
Xxxxxx Mac Mortgage Securities Corporation, a corporation organized and
existing under the laws of the State of Delaware (the "Company"), may offer for
sale to you (the "Underwriter") from time to time its Guaranteed Agricultural
Mortgage-Backed Securities ("XXXX") evidencing interests in pools of
agricultural real estate mortgage loans (the "Qualified Loans") and previously
issued XXXX (the "Certificates"). The Certificates may be issued in various
series, and within each series, in one or more classes, in one or more offerings
on terms determined at the time of sale (each such series, a "Series" and each
such class, a "Class"). Each Series of the Certificates will be issued pursuant
to a Trust Agreement dated June 1, 1996 (the "Trust Agreement") as supplemented
by an Issue Supplement (each, an "Issue Supplement" and together with the Trust
Agreement, the "Agreement") to be dated as of the respective cutoff date (each,
a "Cut-off Date") between the Company, as depositor, the Federal Agricultural
Mortgage Corporation ("Xxxxxx Mac"), as guarantor, and First Trust National
Association, as trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Agreement.
The Certificates issued under the Agreement will represent the entire
beneficial ownership interest in a trust fund (the "Trust Fund") established by
such Agreement. If so specified in the related Terms Agreement, one or more
elections may be made to treat the assets of each Trust Fund as a real estate
mortgage investment conduit (each, a "REMIC") for federal income tax purposes.
The Certificates will have the benefit of the guarantee of
Xxxxxx Mac (the "Xxxxxx Mac Guarantee"). The Xxxxxx Mac
Guarantee will guarantee the timely payment of required distributions of
interest and principal on the Certificates as described in the related Issue
Supplement.
Whenever the Company determines to make an offering of Certificates (each,
a "Certificate Offering") pursuant to this Agreement through you, it will enter
into an agreement with you (the "Terms Agreement") providing for the sale of
specified Classes of Offered Certificates (as defined below) to, and the
purchase and public offering thereof by, you. Each such Certificate Offering
which the Company elects to make pursuant to this Agreement shall be governed by
this Underwriting Agreement, as supplemented by the related Terms Agreement.
Each Terms Agreement, which shall be substantially in the form of Exhibit A
hereto, shall specify, among other things, the Classes of Certificates to be
purchased by the Underwriter (the "Offered Certificates"), the principal balance
or balances of the Offered Certificates, each subject to any stated variance,
and the price or prices at which such Offered Certificates are to be purchased
by the Underwriter from the Company.
1. Representations and Warranties. (a) The Company
represents and warrants to and agrees with the Underwriter, as of
the date of the related Terms Agreement, that:
(i) The registration statement specified in the related Terms
Agreement, on Form S-3, including a prospectus, has been filed with the
Securities and Exchange Commission (the "Commission") for the registration
under the Securities Act of 1933, as amended (the "Act"), of guaranteed
agricultural mortgage-backed securities issuable in series, which
registration statement has been declared effective by the Commission. Such
registration statement, as amended to the date of the related Terms
Agreement, including any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the effective date of the Registration Statement, is hereinafter
called the "Registration Statement", and such prospectus, as such
prospectus is supplemented by a prospectus supplement relating to the
Offered Certificates of the related Series, each in the form first filed
after the date of the related Terms Agreement pursuant to Rule 424(b)
under the Act, including any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act which were filed under the
Exchange Act on or before the date of such prospectus supplement (other
than any such incorporated documents that relate to Collateral Term Sheets
(as defined herein))(such prospectus supplement, including such
incorporated documents (other than those that relate to Collateral Term
Sheets), in the form first filed after the date of the related Terms
Agreement pursuant to Rule 424(b) is hereinafter called the "Prospectus
Supplement"), is hereinafter called the "Prospectus". Any reference herein
to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Prospectus or the Prospectus Supplement shall
be deemed to refer to and include the filing of any document under the
Exchange Act after the effective date of the Registration Statement or the
issue date of the Prospectus or Prospectus Supplement, as the case may be,
deemed to be incorporated therein by reference pursuant to Item 12 of Form
S-3 under the Act.
(ii) The related Registration Statement, at the time it became
effective, and the Prospectus contained therein, and any amendments
thereof and supplements thereto filed prior to the date of the related
Terms Agreement, conformed in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder; on the
date of the related Terms Agreement and on each Closing Date (as defined
in Section 3 below), the related Registration Statement and the related
Prospectus, and any amendments thereof and supplements thereto, will
conform in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder; such Registration
Statement, at the time it became effective, did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; such Prospectus, on the date of any filing pursuant to Rule
424(b) and on each Closing Date, will not include any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they are
made, not misleading; and any Form 8-K referred to in such Prospectus, on
each Closing Date and the date of any filing thereof under cover of Form
8-K, will not include any untrue statement of a material fact or omit to
state any information which such Prospectus states will be included
therein; provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from (A) such
Registration Statement or such Prospectus (or any supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Underwriter specifically for use in the
preparation thereof or (B) any Current Report (as defined in Section 5(b)
below), or in any amendment thereof or supplement thereto, incorporated by
reference in such Registration Statement or such Prospectus (or any
amendment thereof or supplement thereto).
(iii)On the Closing Date, the Certificates of the related Series will
have been duly and validly authorized, and when executed and authenticated
in accordance with the terms of the Agreement and sold to the Underwriter
as provided herein, will be validly issued and entitled to the benefits of
the Agreement.
(iv) On the Closing Date, the Xxxxxx Mac Guarantee will be in full
force and effect and constitute a valid and binding agreement of Xxxxxx
Mac enforceable in accordance with its terms.
2. Purchase and Sale. Subject to the execution of the Terms Agreement for
a particular Certificate Offering and subject to the terms and conditions and in
reliance upon the representations and warranties set forth in this Underwriting
Agreement and such Terms Agreement, the Company agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Company, all, but
not less than all, of the related Offered Certificates at the purchase price
therefor set forth in such Terms Agreement (the "Purchase Price").
The parties hereto agree that settlement for all securities sold pursuant
to this Underwriting Agreement and the applicable Terms Agreement shall take
place on the settlement date agreed upon at the time of the related transaction
and set forth as the "Closing Date" in such Terms Agreement and not as set forth
in Rule 15c6-1(a) of the Exchange Act.
3. Delivery and Payment. Delivery of and payment for the Offered
Certificates of a Series shall be made at the offices of the Company,
Washington, D.C., at 10:00 A.M., New York City time, on the Closing Date
specified in the related Terms Agreement, which date and time may be postponed
by agreement between the Underwriter and the Company (such date and time being
herein called the "Closing Date"). Delivery of such Offered Certificates shall
be made to the Underwriter against payment by the Underwriter of the Purchase
Price thereof to or upon the order of the Company by wire transfer in federal or
other immediately available funds or by check payable in federal funds, as the
Company shall specify no later than five full business days prior to such
Closing Date. Unless delivery is made through the facilities of the U.S. Federal
Reserve Banks, the Offered Certificates shall be in certificated form and
registered in such names and in such authorized denominations as the Underwriter
may request not less than two full business days in advance of each Closing
Date.
4. Offering by the Underwriter. It is understood that the Underwriter
proposes to offer the Offered Certificates of the related Series for sale to the
public as set forth in the related Prospectus.
5. Agreements. The Company and Xxxxxx Mac jointly and
severally agree with the Underwriter that:
(a) The Company will cause the Prospectus as supplemented by a
Prospectus Supplement relating to the Offered Certificates to be filed
pursuant to Rule 424 under the Act and will promptly advise the
Underwriter when such Prospectus as so supplemented has been so filed, and
prior to the termination of the Certificate Offering to which such
Prospectus relates also will promptly advise the Underwriter (i) when any
amendment to the related Registration Statement specifically relating to
such Offered Certificates shall have become effective or any further
supplement to such Prospectus has been filed, (ii) of any request by the
Commission for any amendment of such Registration Statement or Prospectus
or for any additional information, (iii) of the issuance by the Commission
of any stop order suspending the effectiveness of such Registration
Statement or the institution or threatening of any proceeding for that
purpose and (iv) of the receipt by the Company of any written notification
with respect to the suspension of the qualification of such Offered
Certificates for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company will not file any
amendment of the related Registration Statement or supplement to the
related Prospectus (other than any amendment or supplement specifically
relating to one or more Series of guaranteed agricultural mortgage-backed
securities other than the Series that includes the related Offered
Certificates) unless the Company has furnished the Underwriter with a copy
for its review prior to filing. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) The Company will cause any Computational Materials and any
Structural Term Sheets (each as defined in Section 8 below) with respect
to the Offered Certificates of a Series that are delivered by the
Underwriter to the Company pursuant to Section 8 to be filed with the
Commission on a Current Report on Form 8-K (each such filing of such
materials, a "Current Report") pursuant to Rule 13a-11 under the Exchange
Act on the business day immediately following the later of (i) the day on
which such Computational Materials and Structural Term Sheets are
delivered to counsel for the Company by the Underwriter prior to 10:30
a.m. and (ii) the date on which this Agreement is executed and delivered.
The Company will cause one Collateral Term Sheet (as defined in Section 9
below) with respect to the Offered Certificates of a Series that is
delivered by the Underwriter 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 the Underwriter prior to 10:30
a.m. In addition, if at any time prior to the availability of the related
Prospectus Supplement the Underwriter has delivered to any prospective
investor a Collateral Term Sheet that reflects, in the reasonable judgment
of the Underwriter and the Company, a material change in the
characteristics of the Qualified 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 the 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 the Underwriter prior to 10:30 a.m. In each
case, the Company will promptly advise the Underwriter when such Current
Report has been so filed. Each such Current Report shall be incorporated
by reference in the related Prospectus and the related Registration
Statement. Notwithstanding the five preceding sentences, the Company shall
have no obligation to file any materials provided by the Underwriter
pursuant to Sections 8 and 9 which, in the reasonable determination of the
Company after making reasonable efforts to consult with the Underwriter,
are not required to be filed pursuant to the Xxxxxx Letters or the PSA
Letter (each as defined in Section 8 below), or which 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, Structural
Term Sheets or Collateral Term Sheets provided by the Underwriter to the
Company pursuant to Section 8 or Section 9 hereof.
(c) If, at any time when a prospectus relating to the Offered
Certificates of a Series is required to be delivered under the Act, any
event occurs as a result of which the related Prospectus as then amended
or supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein
in light of the circumstances under which they were made not misleading,
or if it shall be necessary at any time to amend or supplement the related
Prospectus to comply with the Act or the rules thereunder, the Company
promptly will prepare and file with the Commission, subject to paragraph
(a) of this Section 5, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance;
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 the Company determines to file in accordance therewith.
(d) Whether or not the transactions contemplated hereby and by the
related Terms Agreement shall be consummated, the Company shall be
responsible for the payment of any costs and expenses for which details
are submitted, in connection with the performance of its obligations under
this Underwriting Agreement and the related Terms Agreement. The
Underwriter will pay all its own costs and expenses, including the fees of
Stroock & Stroock & Xxxxx, counsel for the Underwriter, transfer taxes on
resale of any Offered Certificates by it, advertising expenses connected
with any offers that it may make, the fees of KPMG Peat Marwick LLP with
respect to any letter furnished pursuant to Section 6(c) of this Agreement
to the extent such letter or letters do not relate to collateral
information on the related Qualified Loans for the related Certificate
Offering and all expenses (e.g., shipping, postage and courier costs)
associated with the delivery of the related Prospectus to prospective
investors and investors, other than the costs of delivery to the
Underwriter's facilities.
6. Conditions to the Obligations of the Underwriter. The obligation of the
Underwriter to purchase the Offered Certificates of any Series shall be subject
to the accuracy in all material respects of the representations and warranties
on the part of the Company or Xxxxxx Mac contained in this Agreement, as
supplemented by the related Terms Agreement, as of the respective dates thereof
and the related Closing Date, to the accuracy of the statements of the Company
or Xxxxxx Mac made in any applicable officers' certificates pursuant to the
provisions hereof, to the performance by the Company or Xxxxxx Mac of each of
its obligations under this Agreement and such Terms Agreement and to the
following additional conditions applicable to the related Certificate Offering:
(a) No stop order suspending the effectiveness of the related
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) Xxxxxxx X. Xxxxxxx, General Counsel of the Company and Xxxxxx
Mac, shall have furnished to the Underwriter an opinion, dated the related
Closing Date, to the effect as set forth in Exhibit B hereto.
(c) KPMG Peat Marwick LLP shall have furnished to the Underwriter one
or more letters, in form and substance satisfactory to the Underwriter.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects with respect to the particular Offered
Certificates of a Series when and as provided in this Underwriting Agreement and
the related Terms Agreement, this Agreement (with respect to such Offered
Certificates) and such Terms Agreement and all obligations of the Underwriter
hereunder (with respect to such Offered Certificates) and thereunder may be
canceled at, or at any time prior to, the related Closing Date by the
Underwriter. Notice of such cancellation shall be given to the Company in
writing, or by telephone or telecopy confirmed in writing.,
7. Indemnification and Contribution.
(a) The Company and Xxxxxx Mac agree, jointly and severally, to
indemnify and hold harmless the Underwriter and each person who controls the
Underwriter within the meaning of the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act, or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement relating to the
Offered Certificates of the applicable Series as it became effective or in any
amendment or supplement thereof, or in such Registration Statement or the
related Prospectus, or in any amendment thereof, or in the Form 8-K referred to
in such Prospectus 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 each
case, as defined herein) in respect of which the Company and Xxxxxx Mac agree to
indemnify the Underwriter, 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, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company and Xxxxxx Mac 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 Underwriter specifically for use in connection with the
preparation thereof or (B) in any Current Report or any amendment or supplement
thereof, except to the extent that any untrue statement or alleged untrue
statement therein or omission therefrom results (or is alleged to have resulted)
directly from an error (a "Mortgage Pool Error") in the information concerning
the characteristics of the Mortgage Loans furnished by the Company to the
Underwriter in writing or by electronic transmission that was used in the
preparation of either (x) any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) included in such Current Report (or amendment
or supplement thereof) or (y) any written or electronic materials furnished to
prospective investors on which the Computational Materials (or amendments or
supplements) were based, (ii) such indemnity with respect to any Corrected
Statement (as defined below) in such Prospectus (or supplement thereto) shall
not inure to the benefit of the Underwriter (or any person controlling the
Underwriter) from whom the person asserting any loss, claim, damage or liability
purchased the Certificates of the related Series that are the subject thereof if
such person did not receive a copy of a supplement to such Prospectus at or
prior to the confirmation of the sale of such Certificates and the untrue
statement or omission of a material fact contained in such Prospectus (or
supplement thereto) was corrected (a "Corrected Statement") in such other
supplement and such supplement was furnished by the Company to the Underwriter
prior to the delivery of such confirmation, and (iii) such indemnity with
respect to any Mortgage Pool Error shall not inure to the benefit of the
Underwriter (or any person controlling the Underwriter) from whom the person
asserting any loss, claim, damage or liability received any Computational
Materials (or any written or electronic materials on which the Computational
Materials are based) or ABS Term Sheets that were prepared on the basis of such
Mortgage Pool Error, if, prior to the time of confirmation of the sale of the
applicable Certificates to such person, the Company notified the Underwriter in
writing of the Mortgage Pool Error or provided in written or electronic form
information superseding or correcting such Mortgage Pool Error (in any such
case, a "Corrected Mortgage Pool Error"), and the Underwriter failed to notify
such person thereof or to deliver to such person corrected Computational
Materials (or underlying written or electronic materials) or ABS Term Sheets.
This indemnity agreement will be in addition to any liability which the Company
or Xxxxxx Mac may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the Company
and Xxxxxx Mac, each of its directors, each of its officers who signs the
Registration Statement relating to the Offered Certificates of the applicable
Series, and each person who controls the Company or Xxxxxx Mac within the
meaning of the Act or the Exchange Act to the same extent as the foregoing
indemnities from the Company and Xxxxxx Mac to the Underwriter, but only with
reference to (A) written information furnished to the Company by or on behalf of
the Underwriter specifically for use in the preparation of the documents
referred to in the foregoing indemnity with respect to the related Series, or
(B) any Computational Materials or ABS Term Sheets (or amendments or supplements
thereof) furnished to the Company by the Underwriter pursuant to Section 8 or
Section 9 and incorporated by reference in such Registration Statement or the
related Prospectus or any amendment or supplement thereof (except that no such
indemnity shall be available for any losses, claims, damages or liabilities, or
actions in respect thereof, resulting from any Mortgage Pool Error, other than a
Corrected Mortgage Pool Error). This indemnity agreement will be in addition to
any liability which the Underwriter may otherwise have. The Company acknowledges
that the statements set forth [TO COME] constitute the only information
furnished in writing by or on behalf of the Underwriter for inclusion in the
related Prospectus (other than any Computational Materials or ABS Term Sheets
(or amendments or supplements thereof) furnished to the Company by the
Underwriter), and the Underwriter confirms that such statements are correct.
(c) Promptly after receipt by an indemnified party under Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel approved by the indemnified party in the case of subparagraph
(a) or (b), representing the indemnified parties under subparagraph (a) or (b),
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in paragraph (a) or (b) of
this Section 7 is due in accordance with its terms but is for any reason held by
a court to be unavailable from the Company, Xxxxxx Mac or the Underwriter, on
grounds of policy or otherwise, or if the indemnified party failed to give
notice under paragraph (c) of this Section 7 in respect of a claim otherwise
subject to indemnification in accordance with paragraph (a) or (b) of this
Section 7, the Company, Xxxxxx Mac and the Underwriter shall contribute to the
aggregate losses, claims, damages and liabilities (including legal and other
expenses reasonably incurred in connection with investigating or defending same)
to which the Company, Xxxxxx Mac and the Underwriter may be subject, as follows:
(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 proportion so that the Underwriter is
responsible for that portion represented by the difference between the
proceeds to the Company and Xxxxxx Mac in respect of the Offered
Certificates appearing on the cover page of the Prospectus Supplement for
the related Series and the total proceeds received by the Underwriter from
the sale of such Offered Certificates (the "Underwriting Discount"), and
the Company is responsible for the balance; and
(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
and Xxxxxx Mac on the one hand and the Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as
any other relevant equitable considerations. The relative 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 in such Computational Materials or ABS
Term Sheets (or any amendments or supplements thereof or such written or
electronic materials) results from information prepared by the Company on
the one hand or the Underwriter on the other and the parties, relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
Notwithstanding anything to the contrary in this Section 7(d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who
controls the Underwriter within the meaning of either the Act or the Exchange
Act shall have the same rights to contribution as the Underwriter, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company or Xxxxxx Mac shall have the same
rights to contribution as the Company and Xxxxxx Mac, subject in each case to
the immediately preceding sentence of this paragraph (d).
8. Computational Materials and Structural Term Sheets. (a) Not later than
10:30 a.m., New York time, on the business day before the date on which the
Current Report relating to the Offered Certificates of a Series is required to
be filed by the Company with the Commission pursuant to Section 5(b) hereof, the
Underwriter shall deliver to the Company one complete copy of all materials
provided by the Underwriter to prospective investors in such Offered
Certificates that constitute (i) "Computational Materials" within the meaning of
the no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Peabody & Co. Incorporated, and Xxxxxx Structured Asset Corporation and the
no-action letter dated May 27, 1994 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (together, the
"Xxxxxx Letters"), the filing of which material is a condition of the relief
granted in such letter (such materials being the "Computational Materials"), and
(ii) "Structural Term Sheets" within the meaning of the no-action letter dated
February 17, 1995 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (the "PSA Letter"), the filing
of which material is a condition of the relief granted in such letter (such
materials being the "Structural Term Sheets").
(b) The Underwriter 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 the
Underwriter prior to the time of delivery thereof to the Company that are
required to be filed with the Commission with respect to the related
Offered Certificates in accordance with the Xxxxxx Letters, and such
Computational Materials comply with the requirements of the Xxxxxx
Letters;
(ii) the Structural Term Sheets furnished to the Company pursuant to
Section 8(a) constitute all of the materials furnished to prospective
investors by the Underwriter prior to the time of delivery thereof to the
Company that are required to be filed with the Commission as "Structural
Term Sheets" with respect to the related Offered Certificates in
accordance with the PSA Letter, and such Structural Term Sheets comply
with the requirements of the PSA Letter; and
(iii)on the date any such Computational Materials or Structural Term
Sheets with respect to such offered 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.
Notwithstanding the foregoing, the Underwriter makes 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 Underwriter from the Company of
notice of such Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error).
(c) The Underwriter acknowledges and agrees that any Computational
Materials or Structural Term Sheets with respect to any Series of Certificates
have been prepared and disseminated by the Underwriter and not by or on behalf
of the Company, and that such materials included and shall include a disclaimer
in form satisfactory to the Company to the effect that such materials have been
prepared and disseminated by the Underwriter, and that the content and accuracy
of such materials have not been reviewed by the Company.
(d) If, at any time when a prospectus relating to the Offered
Certificates of a Series is required to be delivered under the Act, it shall be
necessary to amend or supplement the related Prospectus as a result of an untrue
statement of a material fact contained in any Computational Materials or
Structural Term Sheets provided by the Underwriter pursuant to this Section 8 or
the omission to state therein a material fact required, when considered in
conjunction with the related Prospectus and Prospectus Supplement, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the related Prospectus and Prospectus Supplement, not misleading, or if it
shall be necessary to amend or supplement any Current Report relating to any
Computational Materials or Structural Term Sheets to comply with the Act or the
rules thereunder, the Underwriter promptly will prepare and furnish to the
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. The Underwriter represents and warrants to the Company, as of the
date of delivery of such amendment or supplement to the Company, that 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
the Underwriter makes 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 the
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 the Underwriter to the Company pursuant to this paragraph
(e) or (ii) such filing is not required under the Act.
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 any Offered
Certificates, the Underwriter shall, in order to facilitate the timely filing of
such material with the Commission, 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 such Offered Certificates, the Underwriter shall deliver to the
Company five complete copies of all materials provided by the Underwriter to
prospective investors in the Offered Certificates that constitute "Collateral
Term Sheets." Each delivery of a Collateral Term Sheet to the Company pursuant
to this paragraph (a) shall be effected by delivering 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, the Underwriter shall indicate in writing that the materials being
delivered constitute Collateral Term Sheets, and, if there has been any prior
such delivery with -respect to the related Series, shall indicate whether such
materials differ in any material respect from any Collateral Term Sheets
previously delivered to the 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) The Underwriter 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 the 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 Offered Certificates in
accordance with the PSA Letter, and such Collateral Term Sheets comply
with the requirements of the PSA Letter; and
(ii) On the date any such Collateral Term Sheets with respect to such
Offered 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.
Notwithstanding the foregoing, the Underwriter makes 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 the Underwriter from the Company of notice of such
Corrected Mortgage Pool Error or materials superseding or correcting such
Corrected Mortgage Pool Error).
(c) The Underwriter 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 will have been prepared and
disseminated by the Underwriter and not by or on behalf of the Company, and that
such materials shall include a disclaimer in form satisfactory to the Company 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 Offered
Certificates and will be superseded by the description of the related Mortgage
Loans in the related Prospectus Supplement and in the Form 8-K relating to such
Prospectus Supplement to be filed. The Underwriter agrees that it will not
represent to prospective investors that any Collateral Term Sheets were prepared
or disseminated on behalf of the Company or Xxxxxx Mac.
(d) If, at any time when a prospectus relating to the Offered
Certificates of a Series is required to be delivered under the Act, it shall be
necessary to amend or supplement the related Prospectus as a result of an untrue
statement of a material fact contained in any Collateral Term Sheets provided by
the Underwriter pursuant to this Section 9 or the omission to state therein a
material fact required, when considered in conjunction with the related
Prospectus and Prospectus Supplement, to be stated therein or necessary to make
the statements therein, when read in conjunction with the related Prospectus and
Prospectus Supplement, not misleading, or if it shall be necessary to amend or
supplement any Current Report relating to any Collateral Term Sheets to comply
with the Act or the rules thereunder, the Underwriter promptly will prepare and
furnish to the 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. The Underwriter represents and warrants to the Company, as of
the date of delivery of such amendment or supplement to the Company, that 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, the
Underwriter makes 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 the 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 the Underwriter to the Company pursuant to this paragraph
(d) or (ii) such filing is not required under the Act.
10. Termination. This Agreement (with respect to a particular Certificate
Offering) and the related Terms Agreement shall be subject to termination in the
absolute discretion of the Underwriter, by notice given to the Company prior to
delivery of and payment for the related Offered Certificates, if prior to the
related Closing Date (i) trading in securities generally on the New York Stock
Exchange shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or New York State authorities, or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is such
as to make it, in the reasonable judgment of the Underwriter, impracticable to
market such Offered Certificates.
11. Representations and Indemnities to Survive Delivery. The agreements,
representations, warranties, indemnities and other statements of the Company and
Xxxxxx Mac or its respective officers and of the Underwriter set forth in or
made pursuant to this Agreement and the related Terms Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
the Underwriter, the Company or Xxxxxx Mac or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the related Offered Certificates. The provisions of Section 7
hereof shall survive the termination or cancellation of this Agreement and the
related Terms Agreement.
12. Successors. This Agreement and the related Terms Agreement will inure
to the benefit of and be binding upon the parties hereto and thereto and their
respective successors and the officers, directors and controlling persons
referred to in Section 7 hereof, and their successors and assigns, and no other
person will have any right or obligation hereunder or thereunder. No purchaser
of any Offered Certificate from the Underwriter shall be deemed a successor or
assign by reason of such purchase.
13. APPLICABLE LAW. THIS AGREEMENT AND THE RELATED TERMS
AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED THEREIN.
14. Miscellaneous. This Agreement, as supplemented by the related Terms
Agreement, supersedes all prior and contemporaneous agreements and
understandings relating to the subject matter hereof. This Agreement and the
related Terms Agreement or any term of each may not be changed, waived,
discharged or terminated except by an affirmative written agreement made by the
party against whom enforcement of the change, waiver, discharge or termination
is sought. The headings in this Agreement and the related Terms Agreement are
for purposes of reference only and shall not limit or otherwise affect the
meaning hereof or thereof.
15. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Underwriter, will be delivered to it at the address first above
written; or if sent to the Company or Xxxxxx Mac, will be
delivered to 000 00xx Xxxxxx, X.X. Xxxxxxxxxx, X.X. 00000,
Attention: General Counsel.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, Xxxxxx Mac and the Underwriter.
Very truly yours,
XXXXXX MAC MORTGAGE SECURITIES
CORPORATION
By:
--------------------------------
Name:
Title:
FEDERAL AGRICULTURAL MORTGAGE
CORPORATION
By:
---------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[UNDERWRITER]
By: _________________________
Name:
Title:
EXHIBIT A
XXXXXX MAC MORTGAGE SECURITIES CORPORATION
Guaranteed Agricultural Mortgage-Backed Securities
Series 1996-
Guaranteed by the Federal Agricultural Mortgage Corporation
TERMS AGREEMENT
(to Underwriting Agreement,
dated June [__], 1996,
among the Company, Xxxxxx Mac and the Underwriter)
Xxxxxx Mac Mortgage Securities Corporation
[DATE]
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx X.X. 00000
Federal Agricultural Mortgage Corporation
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx X.X. 00000
_________________________ (the "Underwriter") agrees, subject to the terms
and provisions herein and of the captioned Underwriting Agreement (the
"Underwriting Agreement"), to purchase the Classes of Series 1996-______
Certificates specified in Section 1(a) hereof (the "Offered Certificates"). This
Terms Agreement supplements and modifies the Underwriting Agreement solely as it
relates to the purchase and sale of the Offered Certificates described below.
The Series 1996-_________ Certificates are registered with the Securities and
Exchange Commission by means of an effective Registration Statement (No.
33-___________). Capitalized terms used and not defined herein have the meanings
given them in the Underwriting Agreement.
Section 1.The Certificates: The Offered Certificates shall
be issued as follows:
(a) Classes: The Offered Certificates shall be issued with the
following Class designations, interest rates and principal balances,
subject in the aggregate to the variance referred to in Section i(a):
Principal Interest Class Purchase
Class Balance Rate Price Percentage
(b) The Offered Certificates shall have such other characteristics as
described in the related Prospectus.
Section 2.Purchase Price: The Purchase Price for each Class of the Offered
Certificates shall be the Class Purchase Price Percentage therefor (determined
as set forth in Section 1(a) above) of the initial Class Certificate Principal
Balance thereof plus accrued interest at the initial interest rate per annum
from and including the Cut-off Date up to, but not including, __________,
_______ ("the Closing Date").
Section 0.Xxx Treatment: [One or more elections will be
made to treat the assets of the Trust Fund as a REMIC.]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Underwriter, the Company and Xxxxxx Mac.
Very truly yours,
[UNDERWRITER]
By:
-------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXX MAC MORTGAGE SECURITIES CORPORATION
By: ______________________________
Name:
Title:
FEDERAL AGRICULTURAL MORTGAGE CORPORATION
By: ______________________________
Name:
Title:
EXHIBIT B
[Xxxxxx Mac Letterhead]
[Date]
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxxx Mac Guaranteed Agricultural Mortgage-Backed
Securities Series 1996-
Ladies and Gentlemen:
I am the Vice President and General Counsel of the Federal Agricultural
Mortgage Corporation, a federally chartered instrumentality of the United States
("Xxxxxx Mac"), and in such capacity have acted as counsel to Xxxxxx Mac and
Xxxxxx Mac Mortgage Securities Corporation (the "Company") in connection with
the issuance and sale of $[ ] aggregate principal amount of Guaranteed
Agricultural Mortgage-Backed Securities, Series 1996-[ ], (the Certificates"),
to you (the "Underwriter") pursuant to the Underwriting Agreement dated June [
], 1996 (the "Underwriting Agreement"), as supplemented by the Terms Agreement
dated June [ ], 1996 (the "Terms Agreement"), each by and among the Company,
Xxxxxx Mac and the Underwriter.
The Certificates have been issued pursuant to a Trust Agreement dated as
of June 1, 1996 (the "Trust Agreement"), as supplemented by an Issue Supplement
dated June [ ], 1996 (the "Issue Supplement" and together with the Trust
Agreement, the "Agreement"), by and among the Company, as depositor, Xxxxxx Mac,
as guarantor, and First Trust National Association, as trustee (the "Trustee").
Capitalized terms used but not otherwise defined herein shall have the meanings
assigned to such terms in the Agreement.
In arriving at the opinions expressed below, I have made such legal and
factual examinations and inquiries, and have examined and relied upon originals
or copies, certified or otherwise identified to my satisfaction, of such other
certificate, corporate records, agreements and other instruments and documents,
as I have deemed advisable or necessary for the purpose of rendering this
opinion.
Based upon the foregoing and my consideration of such other matters of
fact and questions of law as I have deemed relevant in the circumstances, I am
of the opinion that:
(i) Xxxxxx Mac has been duly incorporated and is validly existing as
a federally chartered instrumentality of the United States, pursuant to
Title VIII of the Xxxxxx Credit Act of 1971, as amended (the "Act"), and
has statutory authority under the Act to enter into and perform its
obligations under the Agreement, the Underwriting Agreement and Terms
Agreement and to consummate the transactions contemplated thereby.
(ii) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
and has corporate power and authority to enter into and perform its
obligations under the Agreement, the Underwriting Agreement and Terms
Agreement and to consummate the transactions contemplated thereby.
(iii)When duly issued and outstanding, the Certificates will be
entitled to the benefits of the Agreement and the Xxxxxx Mac Guarantee to
the extent described in the Issue Supplement.
In rendering the opinions set forth above, I do not express any
independent opinion concerning law other than the Delaware General Corporation
Law, the laws of the District of Columbia and the federal law of the United
States of America.
This opinion is delivered to you pursuant to the Underwriting Agreement
and in connection with the transactions contemplated thereby and may not be
relied upon by you or any other person in any other context without my prior
written consent. This opinion is given as of the date hereof and I assume no
obligation to advise you of changes that may thereafter be brought to my
attention.
Very truly yours,
