Exhibit 1.1
FORM OF
UNDERWRITING AGREEMENT
[Date]
[Name and address of Representative to be
provided]
Ladies and Gentlemen:
Bayview Financial Securities Company, LLC
(the “Depositor”), a Delaware limited liability
company, has authorized the issuance and sale of [Bayview Financial
Mortgage Pass-Through Trust
200[ ]-[ ] Mortgage Pass-Through
Certificates, Series
200[ ]-[ ]][Bayview Financial
Asset Trust 200[ ]-[ ] Mortgage
Backed Notes] (the “Securities”). The Securities
are designated as the Class [ ], Class
[ ], Class [ ], [etc.] and Class
[ ] [Certificates] [Notes].
Only the Class [ ],
Class [ ], Class [ ], [etc.] and
Class [ ] [Certificates] [Notes] (collectively,
the “Underwritten Securities”) are being purchased by
the Underwriters named in Schedule A hereto, and the Underwriters
are purchasing only the Underwritten Securities set forth opposite
their names in Schedule A, except that the amounts purchased by the
Underwriters may change in accordance with Section 10 of this
Underwriting Agreement (the “Agreement”). [Name
of Representative] is acting as representative of the several
Underwriters and in such capacity is hereinafter referred to as the
“Representative.” If only one underwriter is
named in Schedule A, the terms “Underwriter,”
“Underwriters” and “Representative” shall
refer to that named underwriter.
The Securities will be issued [under a
pooling and servicing agreement (the “Pooling and Servicing
Agreement”)] [pursuant to an indenture (the
“Indenture”)] dated as of
[ ] 1,
200[ ], among [ ],
[ ], [etc.] and [ ].
Capitalized but undefined terms shall have the meanings set
forth in the [Pooling and Servicing Agreement] [Indenture or in the
Transfer and Servicing Agreement (as defined below), as
applicable].
The [Certificates will evidence
fractional undivided interests in the trust fund (the
“Trust”) formed pursuant to the Pooling and Servicing
Agreement. The assets of the Trust will consist] [Notes will
represent obligations of the Trust and will be secured by
collateral consisting] primarily of [ ] pool[s] of
fixed and adjustable rate, fully amortizing and balloon mortgage
loans secured by first liens on single-family residential,
multifamily, commercial and mixed use properties. [A form of
the Pooling and Servicing Agreement has been filed as an exhibit]
[Forms of the Indenture and the Transfer and Servicing Agreement
have been filed as exhibits] to the Registration
Statement.
The Securities are more fully described
in a Registration Statement that the Depositor has furnished to the
Underwriters.
SECTION 1.
Representations and Warranties of the
Depositor and the Seller .
(a)
The Depositor represents and warrants to
and agrees with the Underwriters that as of the date hereof and as
of the Closing Date:
(i)
A Registration Statement on Form S-3 (No.
333-[ ])
relating to the Underwritten Securities has (i) been prepared by
the Depositor in conformity with the requirements of the Securities
Act of 1933, as amended (the “Securities Act”) and the
rules and regulations (the “Regulations”) of the United
States Securities and Exchange Commission (the
“Commission”) thereunder, (ii) been filed with the
Commission under the Securities Act and (iii) become effective and
is still effective as of the date hereof under the Securities Act.
Copies of such Registration Statement have been delivered by
the Depositor to the Underwriters. Such Registration
Statement, as of its effective date, and each amendment thereto to
the date of this Agreement, as of its effective date, including all
exhibits thereto, is hereinafter called the “Registration
Statement.” The Depositor proposes to prepare and file
with the Commission pursuant to Rule 424 under the Securities Act a
final prospectus dated November 8, 2005 (the “Base
Prospectus”), a preliminary prospectus supplement dated
[ ],
200[ ], relating to the Underwritten Securities
(the “Preliminary Prospectus Supplement”) and a final
prospectus supplement dated
[ ],
200[ ], relating to the Underwritten Securities
(the “Prospectus Supplement”). The Base
Prospectus and the Preliminary Prospectus Supplement relating to
the Underwritten Securities in the form to be filed with the
Commission pursuant to Rule 424 are hereinafter together called the
“Preliminary Prospectus,” and the Base Prospectus and
the Prospectus Supplement relating to the Underwritten Securities
in the form to be filed with the Commission pursuant to Rule 424
are hereinafter together called the “Final Prospectus.”
Each of the Preliminary Prospectus and the Final Prospectus
is referred to herein as a “Prospectus.”
References made herein to a Prospectus shall be deemed to
refer to and include any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act as
of the date of such Prospectus, and any reference to any amendment
or supplement to the Final Prospectus shall be deemed to refer to
and include any document filed under the Securities Exchange Act of
1934, as amended (the “Exchange Act”) after the date of
the Final Prospectus and incorporated by reference in the Final
Prospectus, and any reference to any amendment to the Registration
Statement shall be deemed to include any report of the Depositor
filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date that is incorporated by
reference in the Registration Statement. The Commission has
not issued any order preventing or suspending the use of the Final
Prospectus or the effectiveness of the Registration Statement and
no proceedings for such purpose are pending or, to the
Depositor’s knowledge, threatened by the Commission.
There are no contracts or documents of the Depositor that are
required to be filed as exhibits to the Registration Statement
pursuant to the Securities Act or the Regulations which have not
been so filed or incorporated by reference therein on or prior to
the effective date of the Registration Statement. The
conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied with respect to the
Depositor and the Registration Statement.
(ii)
The Registration Statement, the
Preliminary Prospectus and the Final Prospectus conform, and any
further amendments or supplements to the Registration Statement or
the Final Prospectus will conform when they become effective or are
filed with the Commission, as the case may be, in all material
respects to the requirements of the Securities Act and the
Regulations. The Registration Statement, as of the applicable
effective date as to each part of the Registration Statement, did
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading. The Preliminary
Prospectus, as of its date, did not contain any untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that no
representation or warranty is made as to (i) information omitted
from the Preliminary Prospectus but included in the Final
Prospectus or (ii) information contained in or omitted from the
Registration Statement or either Prospectus in reliance upon and in
conformity with written information furnished to the Depositor in
writing by any Underwriter through the Representative expressly for
use therein, as specified on Exhibit A hereto (the
“Underwriters’ Information”). The Final
Prospectus, as of its date, and as amended or supplemented as of
the Closing Date, does not and will not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement
or the Final Prospectus in reliance upon and in conformity with the
Underwriters’ Information.
(iii)
The documents incorporated by reference
in the Preliminary Prospectus or the Final Prospectus, as
applicable, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and the Regulations of the Commission thereunder; and
any further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with
the Commission, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the Regulations of the Commission
thereunder.
(iv)
The Depositor has been duly organized and
is validly existing under the laws of its jurisdiction of
formation, and is in good standing in all states and jurisdictions
where the character of its assets or the nature of its activities
make such qualification necessary, except where the failure to be
so qualified would not have a material adverse effect on the
Depositor. The Depositor has duly complied with, and its
assets, business operations and leaseholds are in compliance in all
material respects with, the provisions of federal, state and local
laws, rules, regulations and orders applicable to it and its assets
or the conduct of its business and it possesses all required
licenses, permits, authorizations and approvals to the extent
material to the conduct of its businesses, the ownership of its
properties and its execution, delivery and performance of this
Agreement and the Basic Documents to which it is a
party.
(v)
Except as disclosed in the Prospectus
Supplement, there are no actions, proceedings or investigations
pending with respect to which the Depositor has received service of
process before or threatened by any court, administrative agency or
other tribunal to which the Depositor is a party or of which any of
its properties is the subject (A) which, if determined adversely to
the Depositor, would have a material adverse effect on the business
or financial condition of the Depositor, (B) asserting the
invalidity of any of the Basic Documents or the Securities,
(C) seeking to prevent the issuance of the Securities or the
consummation by the Depositor of any of the transactions
contemplated by any of the Basic Documents to which it is a party
or (D) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or
enforceability of, any of the Basic Documents or the
Securities.
(vi)
This Agreement has been, and each of the
other Basic Documents to which it is a party, when executed and
delivered as contemplated hereby and thereby will have been, duly
authorized, executed and delivered by the Depositor, and this
Agreement constitutes, and each of the other Basic Documents to
which it is a party, when executed and delivered as contemplated
herein, will constitute a legal, valid and binding instrument
enforceable against the Depositor in accordance with its terms,
subject, as to enforceability, to the effect of bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance and
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, and with respect to rights of indemnity under any
of the Basic Documents, limitations of public policy under
applicable securities law.
(vii)
The execution, delivery and performance
by the Depositor of the Basic Documents to which it is a party, the
consummation of the transactions contemplated hereby and thereby,
and the issuance and delivery of the Securities do not and will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party, by which the
Depositor is bound or to which any of the properties or assets of
the Depositor or any of its subsidiaries is subject, which breach
or default would have a material adverse effect on the business,
operations or financial condition of the Depositor or its ability
to perform its obligations under any of the Basic Documents to
which it is a party, nor will such actions result in any violation
of the provisions of the certificate of formation or operating
agreement of the Depositor or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Depositor or any of its properties or assets,
which violation would have a material adverse effect on the
business, operations or financial condition of the Depositor or its
ability to perform its obligations under any of the Basic Documents
to which it is a party.
(viii)
The direction by the Depositor to the
[Trustee] to execute, authenticate, issue and deliver the
Securities has been duly authorized by the Depositor and, assuming
the [Trustee] has been duly authorized to undertake such actions,
when executed, authenticated, issued and delivered by the [Trustee]
in accordance with the [Transfer] [Pooling] [Transfer] and
Servicing Agreement [and the Indenture], the Securities will be
validly issued and outstanding and the holders of the Securities
will be entitled to the rights and benefits of the Securities as
provided by the [Pooling] [Transfer] and Servicing Agreement [and
the Indenture].
(ix)
No consent, approval, authorization,
order, registration or qualification of or with any court or
governmental agency or body of the United States is required for
the issuance of the Securities and the sale of the Underwritten
Securities to the Underwriters, or the consummation by the
Depositor of the other transactions contemplated by the Basic
Documents to which it is a party, except (i) such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Underwritten Securities
by the Underwriters or as have been obtained and (ii) such
recordations of assignments of the Mortgage Loans pursuant to the
[Pooling] [Transfer] and Servicing Agreement as have not yet been
completed.
(x)
Immediately prior to the transfer of the
Mortgage Loans contemplated by the [Pooling] [Transfer] and
Servicing Agreement, the Depositor (i) will hold good title to the
Mortgage Loans conveyed by the Depositor, subject to no liens,
mortgages, charges, encumbrances or other security interest
(collectively, “Liens”) that will not be released
simultaneously with such transfer; (ii) will not have assigned to
any person (other than the [Trustee] [Issuer]) any of its right,
title or interest in the Mortgage Loans and (iii) will have the
power and authority under all governmental and regulatory bodies
having jurisdiction over the ownership of the Mortgage Loans to
sell the Mortgage Loans to the [Trustee] [Issuer] and to sell the
Underwritten Securities to the Underwriters. Upon execution
and delivery of the [Pooling] [Transfer] and Servicing Agreement by
the [Indenture] Trustee, the [Trustee] [Issuer] will have acquired
all of the Depositor’s right, title and interest in and to
the Mortgage Loans. Upon delivery to the Underwriters of the
Securities, the Underwriters will have good title to the Securities
free of any Liens.
(xi)
As of the Cut-off Date, the Mortgage
Loans will conform, in all material respects, to the description
thereof in the Final Prospectus.
(xii)
Neither the Depositor nor the Trust Fund
is an “investment company” within the meaning of such
term under the Investment Company Act of 1940, as amended (the
“1940 Act”) and the rules and regulations of the
Commission thereunder.
(xiii)
At the Closing Date, the Underwritten
Securities and the [Pooling] [Transfer] and Servicing Agreement
will conform in all material respects to the descriptions thereof
contained in each Prospectus.
(xiv)
Any taxes, fees and other governmental
charges in connection with the execution, delivery and issuance of
the Basic Documents and the Securities have been paid or will be
paid at or prior to the Closing Date.
(xv)
Since the respective dates as of which
information is given in the Final 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 Depositor,
whether or not arising in the ordinary course of business, and (B)
there have been no transactions entered into by the Depositor that
are material and have not been disclosed, other than those in the
ordinary course of business.
(xvi)
As of
[ ],
200[ ], the Depositor was not an “ineligible
issuer” as defined in Rule 405 under the Securities
Act.
(xvii)
Any certificate signed by an officer of
the Depositor and delivered to the Representative or counsel for
the Representative in connection with an offering of the
Underwritten Securities shall be deemed to be a representation and
warranty as to the matters covered thereby to each person to whom
the representations and warranties in this Section 1 are
made.
(xviii)
As of the date of delivery, all
information provided in writing to the Underwriters by the
Depositor in connection with the issuance and sale of the
Underwritten Securities is true and correct in all material
respects or, if there is any material error in any such
information, the Depositor has promptly provided corrected
information to the Underwriters.
(xix)
The Depositor hereby makes to the
Underwriters the representations, warranties and covenants made by
the Depositor in the Basic Documents, as applicable, as of the date
of the execution and delivery of such agreements, and hereby
incorporates each such representation, warranty and covenant into
this Agreement for the benefit of the Underwriters as if set forth
herein.
(b)
Bayview Financial, L.P., as seller (the
“Seller”) represents and warrants to and agrees with
the Underwriters that as of the date hereof and the Closing
Date:
(i)
As of the date thereof and as of the
Closing Date, the Prospectus will not contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(ii)
The Seller has been duly organized and is
validly existing under the laws of its jurisdiction of formation,
and is in good standing in all states and jurisdictions where the
character of its assets or the nature of its activities make such
qualification necessary, except where the failure to be so
qualified would not have a material adverse effect on the Seller,
and has not been known as or used any other corporate name since
1997 or any fictitious or trade names, except as was required to
conduct business in a state other than its state of formation, in
which case it used a name substantially similar to its name.
The Seller has duly complied with, and its assets, business
operations and leaseholds are in compliance in all material
respects with, the provisions of federal, state and local laws,
rules, regulations and orders applicable to it and its assets or
the conduct of its business and it possesses all required licenses,
permits, authorizations and approvals to the extent material to the
conduct of its businesses, the ownership of its properties and its
execution, delivery and performance of this Agreement and the Basic
Documents to which it is a party.
(iii)
Except as disclosed in the Prospectus
Supplement, there are no actions, proceedings or investigations
pending with respect to which the Seller has received service of
process before or threatened by any court, administrative agency or
other tribunal to which the Seller is a party or of which any of
its properties is the subject (A) which, if determined
adversely to the Seller, would have a material adverse effect on
the business or financial condition of the Seller, (B) asserting
the invalidity of any of the Basic Documents or the Securities,
(C) seeking to prevent the issuance of the Securities or the
consummation by the Seller of any of the transactions contemplated
by any of the Basic Documents to which it is a party or (D) which
might materially and adversely affect the performance by the Seller
of its obligations under, or the validity or enforceability of, any
of the Basic Documents to which it is a party or the
Securities.
(iv)
This Agreement has been, and each of the
other Basic Documents to which it is a party, when executed and
delivered as contemplated hereby and thereby will have been, duly
authorized, executed and delivered by the Seller, and this
Agreement constitutes, and each of the other Basic Documents to
which it is a party, when executed and delivered as contemplated
herein, will constitute a legal, valid and binding instrument
enforceable against the Seller in accordance with its terms,
subject, as to enforceability, to the effect of bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance and
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, and with respect to rights of indemnity under any
of the Basic Documents, limitations of public policy under
applicable securities law.
(v)
The execution, delivery and performance
by the Seller of the Basic Documents to which it is a party, and
the consummation of the transactions contemplated hereby and
thereby, and the issuance and delivery of the Securities do not and
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Seller is a party, by which the Seller is
bound or to which any of the properties or assets of the Seller or
any of its subsidiaries is subject, which breach or violation would
have a material adverse effect on the business, operations or
financial condition of the Seller or its ability to perform its
obligations under any of the Basic Documents to which it is a
party, nor will such actions result in any violation of the
provisions of any organizational document of the Seller or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Seller or
any of its properties or assets, which breach or violation would
have a material adverse effect on the business, operations or
financial condition of the Seller or its ability to perform its
obligations under any of the Basic Documents to which it is a
party.
(vi)
Assuming the [Trustee] has been duly
authorized to undertake such actions, when executed, authenticated,
issued and delivered by the [Trustee] in accordance with the
[Pooling] [Transfer] and Servicing Agreement [and the Indenture],
the Securities will be validly issued and outstanding and the
holders of the Securities will be entitled to the rights and
benefits of the Securities as provided by the [Transfer] [Pooling]
and Servicing Agreement and the Indenture.
(vii)
No consent, approval, authorization,
order, registration or qualification of or with any court or
governmental agency or body of the United States is required for
the issuance of the Securities and the sale of the Underwritten
Securities to the Underwriters, or the consummation by the Seller
of the other transactions contemplated by the Basic Documents to
which it is a party; except (i) such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Underwritten Securities by the
Underwriters or as have been obtained and (ii) such recordations of
assignments of the Mortgage Loans pursuant to the [Pooling]
[Transfer] and Servicing Agreement as have not yet been
completed.
(viii)
Immediately prior to the assignment of
the Mortgage Loans by the Seller to the Depositor, the Seller will
have good title to, and will be the sole owner of, each Mortgage
Loan free and clear of any pledge, mortgage, lien, security
interest or other encumbrance.
(ix)
As of the Cut-off Date, the Mortgage
Loans will meet, in all material respects, the eligibility criteria
described in the Prospectus and will conform to the descriptions
thereof contained in the Final Prospectus.
(x)
The Seller is not an “investment
company” within the meaning of such term under the 1940 Act
and the rules and regulations of the Commission
thereunder.
(xi)
At the Closing Date, the Underwritten
Securities and the [Pooling] [Transfer] and Servicing Agreement
[and the Indenture] will conform in all material respects to the
descriptions thereof contained in each Prospectus.
(xii)
Any taxes, fees and other governmental
charges in connection with the execution, delivery and issuance of
the Basic Documents and the Securities have been paid or will be
paid at or prior to the Closing Date.
(xiii)
Since the respective dates as of which
information is given in the Final 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 Seller, whether
or not arising in the ordinary course of business, and (B) there
have been no transactions entered into by the Seller that are
material and have not been disclosed, other than those in the
ordinary course of business.
(xiv)
Any certificate signed by an officer of
the Seller and delivered to the Representative or counsel for the
Representative in connection with an offering of the Underwritten
Securities shall be deemed to be a representation and warranty as
to the matters covered thereby to each person to whom the
representations and warranties in this Section 1 are
made.
(xv)
As of the date of delivery, all
information provided in writing to the Underwriters by the Seller
in connection with the issuance and sale of the Underwritten
Securities is true and correct in all material respects or, if
there is any material error in any such information, the Seller has
promptly provided corrected information to the
Underwriters.
(xvi)
The Seller hereby makes to the
Underwriters the representations, warranties and covenants made by
the Seller in the Basic Documents, as applicable, as of the date of
the execution and delivery of such agreements, and hereby
incorporates each such representation, warranty and covenant into
this Agreement for the benefit of the Underwriters as if set forth
herein.
SECTION 2.
Purchase and Sale
. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to
this Agreement shall be deemed to have been made on the basis of
the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth. The
Depositor agrees to instruct the [Trustee] to issue the Securities
and agrees to sell to each Underwriter, and each Underwriter agrees
(except as provided in Sections 10 and 11 hereof) severally and not
jointly to purchase from the Depositor, the aggregate initial
principal amounts or percentage interests of the Underwritten
Securities of each Class, as set forth opposite such
Underwriter’s name on Schedule A, at the purchase price or
prices (plus accrued interest, as appropriate) set forth on
Schedule A.
SECTION 3.
Delivery and Payment
. Delivery of and payment for the
Underwritten Securities shall be made at the offices of McKee
Nelson LLP, 1919 M Street, N.W., Washington, D.C. 20036, or at such
other place as shall be agreed upon by the Representative and the
Depositor at 10:00 a.m. New York City time on
[ ],
200[ ], or at such other time or date as shall be
agreed upon by the Representative and the Depositor (such date
being referred to as the “Closing Date”). Payment
shall be made to the Depositor by wire transfer of same day funds
payable to the account of the Depositor or its designee.
Delivery of the Underwritten Securities shall be made to the
Representative for the accounts of the several Underwriters against
payment of the purchase price thereof. The Underwritten
Securities so delivered will, unless otherwise specified, be
initially represented by one or more [certificates] [notes]
registered in the name of Cede & Co., the nominee of The
Depository Trust Company (“DTC”). The interests
of the beneficial owners of the Underwritten Securities will,
unless otherwise specified, be represented by book entries on the
records of DTC and participating members thereof. Definitive
Underwritten Securities will be available only, unless otherwise
specified, under the limited circumstances specified in the
[Pooling] [Transfer] and Servicing Agreement.
SECTION 4.
Offering by the
Underwriters . It is
understood that, subject to the terms and conditions hereof, the
several Underwriters propose to offer the Underwritten Securities
for sale to the public as set forth in the Prospectus.
SECTION 5.
Agreements .
(a)
The Depositor agrees as
follows:
(i)
To prepare the Preliminary Prospectus and
the Final Prospectus in a form approved by the Underwriters and to
file each such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission’s close of
business on the second Business Day following the availability of
such Prospectus to the Underwriters; to make no further amendment
or any supplement to the Registration Statement or to either
Prospectus prior to the Closing Date except as permitted herein; to
advise the Underwriters, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has
been filed or becomes effective prior to the termination of the
offering of the Underwritten Securities or any supplement to the
Final Prospectus or any amended Final Prospectus has been filed and
to furnish the Underwriters or their counsel with copies thereof
without charge; to file promptly all reports required to be filed
by the Depositor with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Final Prospectus and for so long as the delivery of a
prospectus is required by law in connection with the offering or
sale of the Underwritten Securities; and for so long as delivery of
a prospectus is required by law, to promptly advise the
Underwriters of its receipt of notice of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution of, or to the knowledge
of the Depositor the threatening of, any proceeding for such
purpose, or of: (i) any order preventing or suspending the
use of a Prospectus; (ii) the suspension of the qualification of
the Underwritten Securities for offering or sale in any
jurisdiction; (iii) the initiation of or threat of any proceeding
for any such purpose; or (iv) any request by the Commission for the
amending or supplementing of the Registration Statement or the
Final Prospectus or for additional information. In the event
of the issuance of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing or suspending
the use of a Prospectus or suspending any such qualification, the
Depositor promptly shall use its best efforts to obtain the
withdrawal of such order by the Commission.
(ii)
To furnish to the Underwriters and to
counsel for the Underwriters upon request a copy of the
Registration Statement as originally filed with the Commission, and
of each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith.
(iii)
To deliver promptly to the Underwriters
without charge (for so long as delivery of a prospectus is required
by law in connection with the offering or sale of the Underwritten
Securities) such number as the Underwriters shall reasonably
request of the Final Prospectus and any amended or supplemented
Final Prospectus. If the delivery of a prospectus is required
by law at any time prior to the expiration of nine months after the
Closing Date in connection with the offering or sale of the
Underwritten Securities, and if at such time any events shall have
occurred as a result of which the Final Prospectus as then amended
or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made when such Final Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Final Prospectus
or to file under the Exchange Act any document incorporated by
reference in the Final Prospectus in order to comply with the
Securities Act or the Exchange Act, the Depositor shall notify the
Underwriters and, upon any Underwriter’s request, shall file
such document and prepare and furnish without charge to the
Underwriters and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended
Final Prospectus or a supplement to the Final Prospectus which
corrects such statement or omission or effects such compliance, and
in case the Underwriters are required by law to deliver a Final
Prospectus in connection with sales of any of the Underwritten
Securities at any time nine months or more after the Closing Date,
upon the request of the Underwriters but at their expense the
Depositor shall prepare and deliver to the Underwriters as many
copies as the Underwriters may reasonably request of an amended or
supplemented Final Prospectus complying with Section 10(a)(3) of
the Securities Act.
(iv)
For so long as delivery of a prospectus
is required by law in connection with the offering or sale of the
Underwritten Securities, to file promptly with the Commission any
amendment to the Registration Statement or the Final Prospectus or
any supplement to the Final Prospectus that may, in the judgment of
the Depositor, be required by the Securities Act or requested by
the Commission. Neither the Underwriters’ consent to
nor their distribution of any amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section
6.
(v)
To furnish the Underwriters and counsel
for the Underwriters, prior to filing with the Commission, the
following documents relating to the Underwritten Securities:
any post-effective amendment to the Registration Statement or
supplement to the Final Prospectus, or document incorporated by
reference in the Final Prospectus other than any periodic reports
required to be filed after the Closing Date.
(vi)
To use commercially reasonable efforts,
in cooperation with the Underwriters, to qualify the Underwritten
Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States or
elsewhere as the Underwriters may reasonably designate prior to the
execution of this Agreement, and ma
