Exhibit 1.1
$
[ ]
AEGIS ASSET BACKED SECURITIES TRUST
[20[ ]-[ ]]
[Mortgage Backed Notes]
[Mortgage Pass-Through Certificates,
Series 20[ ]-[ ]]
FORM OF UNDERWRITING
AGREEMENT
[ ],
20[ ]
[Name and
address of Underwriter to be provided]
[Name and
address of Underwriter to be provided]
[Name and
address of Underwriter to be provided]
[etc.]
Ladies and
Gentlemen:
Aegis Asset Backed Securities Corporation (the
“Depositor”), a Delaware corporation, has authorized
the issuance and sale of [Aegis Asset Backed Securities Trust
20[ ]-[ ] Mortgage Backed Notes] [Aegis Asset
Backed Securities Trust Mortgage Pass-Through Certificates, Series
20[ ]-[ ]], consisting of (i) the Class
[ ], Class [ ], [etc.] and Class
[ ] [Notes] [Certificates] (the “Senior
[Notes] [Certificates]”) and (ii) the Class
[ ], Class [ ], [etc.] and Class
[ ] [Notes] [Certificates] (collectively, the
“Offered Subordinate [Notes] [Certificates]”). Also
issued are the Class [ ], Class
[ ], [etc.] and Class [ ] [Notes]
[Certificates] (collectively, the “Non-Offered [Notes]
[Certificates]”). The Senior [Notes] [Certificates], the
Offered Subordinate [Notes] [Certificates] and the Non-Offered
[Notes] [Certificates] are collectively referred to as the
“[Notes] [Certificates].”
Only the Senior [Notes] [Certificates] and the
Offered Subordinate [Notes] [Certificates] (collectively, the
“Offered [Notes] [Certificates]”) are being purchased
by the Underwriters named in Schedule A hereto, and [names of
Underwriters to be provided] (collectively, the
“Underwriters”) are purchasing, severally, only the
Offered [Notes] [Certificates] set forth opposite their names in
Schedule A, except that the amounts purchased by the Underwriters
may change in accordance with Section 10 of this Underwriting
Agreement (the “Agreement”). [Name of Respresentative]
is acting as representative of the several Underwriters and in such
capacity, is hereinafter referred to as the
“Representative.”
The [Notes] [Certificates] will be issued
[pursuant to an indenture (the “Indenture”)] [under a
pooling and servicing agreement (the “Pooling and Servicing
Agreement”)] dated as of [ ] 1,
20[ ], among [ ],
[ ], [etc.] and
[ ]. Capitalized but undefined terms
shall have the meanings assigned to them in the [Indenture or in
the Transfer and Servicing Agreement (as defined below), as
applicable] [Pooling and Servicing Agreement].
The [Notes represent obligations of the Trust
and will be secured by collateral consisting primarily]
[Certificates will evidence fractional undivided interests in the
trust fund (the “Trust Fund”) formed pursuant to the
Pooling and Servicing Agreement. The assets of the Trust Fund will
initially include, among other things, [ ] pool[s] of
mortgage loans, comprised] of first lien, adjustable and fixed
rate, fully amortizing and balloon residential mortgage loans,
having a Cut-off Date as of the opening of business on
[ ] 1, 20[ ] (the
“Mortgage Loans”), and such amounts as may be held by
the [Indenture] Trustee or the [Securities] Administrator on behalf
of the [Indenture] Trustee in any accounts held by the [Indenture]
Trustee or the [Securities] Administrator for the Trust [Fund]. The
Mortgage Loans are secured primarily by first deeds of trust or
mortgages on one- to four-family residential properties. [Forms of
the Indenture and the Transfer and Servicing Agreement have been
filed as exhibits] [A form of the Pooling and Servicing Agreement
has been filed as an exhibit] to the Registration Statement (as
defined below). The [Notes] [Certificates] are more fully described
in the Registration Statement.
Pursuant to (i) the sale agreement (the
“Sale Agreement”) dated as of
[ ] 1, 20[ ], between Aegis
[REIT] [Mortgage] Corporation, as seller (the
“Seller”), and the Depositor and (ii) the [transfer and
servicing agreement (the “Transfer and Servicing
Agreement”) dated as of [ ] 1,
20[ ], among [ ],
[ ], [etc.] and [ ]] [Pooling and
Servicing Agreement], the Seller will transfer to the Depositor
[and the Depositor will transfer to the Trust] [and the Depositor
will transfer to the Trustee, for the benefit of the Trust Fund],
all of its right, title and interest in and to the unpaid principal
balances of the Mortgage Loans as of the Cut-off Date and interest
due on and after the Cut-off Date and the collateral securing each
Mortgage Loan.
SECTION 1.
Representations and Warranties of
the Depositor . The
Depositor represents and warrants to, and agrees with, the
Underwriters that as of the date hereof and as of the Closing
Date:
(a) A Registration Statement on Form S-3 (No.
333-[129478]), including a prospectus and a form of prospectus
supplement that contemplates the offering of mortgage [backed
notes] [pass-through certificates], has (i) been prepared by the
Depositor in conformity with the requirements of the Securities Act
of 1933, as amended (the “Securities Act”) and the
rules and regulations (the “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 [ ], 200[ ] (the “Base
Prospectus”), a preliminary prospectus supplement dated [ ],
200[ ], relating to the Offered
[Notes][Certificates] (the “Preliminary Prospectus
Supplement”) and a final prospectus supplement dated [ ],
200[ ], relating to the Offered
[Notes][Certificates] (the “Prospectus Supplement”).
The Base Prospectus and the Preliminary Prospectus Supplement
relating to the Offered [Notes] [Certificates] 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
Offered [Notes] [Certificates] 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.” Reference 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.
(b) 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.
3
(c) 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.
(d) The Depositor has been duly formed and is
validly existing as a corporation in good standing under the laws
of the State of Delaware and is in good standing in 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 all power and authority
necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations
under this Agreement, the Sale Agreement [, the Transfer and
Servicing Agreement and the Indenture] [and the Pooling and
Servicing Agreement] (the “Agreements”) and to cause
the [Notes] [Certificates] to be issued.
(e) 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 or, to the knowledge of the Depositor, threatened by or
before any court, administrative agency or other tribunal to which
the Depositor is a party or of which any of its properties is the
subject (i) which if determined adversely to the Depositor would
have a material adverse effect on the business or financial
condition of the Depositor, (ii) asserting the invalidity of any of
the Agreements or the [Notes] [Certificates], (iii) seeking to
prevent the issuance of the [Notes] [Certificates] or the
consummation by the Depositor of any of the transactions
contemplated by any of the Agreements or (iv) which might
materially and adversely affect the performance by the Depositor of
its obligations under, or the validity or enforceability of, any of
the Agreements or the [Notes] [Certificates].
(f) This Agreement has been, and the [Transfer]
[Pooling] and Servicing Agreement when executed and delivered as
contemplated hereby and thereby will have been, duly authorized,
executed and delivered by the Depositor, and this Agreement
constitutes, and the [Transfer] [Pooling] and Servicing Agreement
when executed and delivered as contemplated herein and therein will
constitute, legal, valid and binding instruments enforceable
against the Depositor in accordance with their respective terms,
subject as to enforceability to (x) applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
affecting creditors’ rights generally, (y) general principles
of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of
indemnity under this Agreement, limitations of public policy under
applicable securities laws.
(g) The execution, delivery and performance of the
Agreements by the Depositor and the consummation of the
transactions contemplated hereby and thereby, and the issuance and
delivery of the [Notes] [Certificates], do not and will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Depositor is a party, by which
the Depositor is bound or to which any of the properties or assets
of the Depositor or any of its subsidiaries is subject, which
conflict, breach, violation 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 Agreements, nor will such actions result in any
violation of the provisions of the certificate of incorporation 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 Agreements.
(h) The direction by the Depositor to the
[Securities] Administrator to execute, authenticate, issue and
deliver the [Notes] [Certificates] has been or will have been duly
authorized by the Depositor and, assuming the [Securities]
Administrator has been duly authorized to undertake such actions,
when executed, authenticated, issued and delivered by the
[Securities] Administrator in accordance with the [Transfer]
[Pooling] and Servicing Agreement [and the Indenture], the [Notes]
[Certificates] will be validly issued and outstanding and the
holders of the [Notes] [Certificates] will be entitled to the
rights and benefits of the [Notes] [Certificates] as provided by
the [Transfer] [Pooling] and Servicing Agreement [and the
Indenture].
(i) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body of the United States is required for the issuance of
the [Notes] [Certificates] and the sale of the Offered [Notes]
[Certificates] to the Underwriters, or the consummation by the
Depositor of the other transactions contemplated by the Agreements,
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 Offered [Notes] [Certificates] by the
Underwriters or as have been obtained and (ii) such
recordations of assignments of the Mortgage Loans pursuant to the
[Transfer] [Pooling] and Servicing Agreement as have not yet been
completed.
(j) Immediately prior to the transfer of the
Mortgage Loans contemplated by the [Transfer] [Pooling] and
Servicing Agreement, the Depositor will: (i) have equitable title
to the interest in the Mortgage Loans conveyed by the Seller, free
and clear of any lien, mortgage, pledge, charge, encumbrance,
adverse claim or other security interest (other than, in the case
of a junior lien mortgage loan, the related second lien mortgage
loan (collectively, “Liens”) that will not be released
simultaneously with such transfer; (ii) not have assigned to any
person (other than the [Issuer] [Trustee]) any of its right, title
or interest in the Mortgage Loans; and (iii) have the power and
authority under all governmental and regulatory bodies having
jurisdiction over the ownership of the Mortgage Loans to sell its
interest in the Mortgage Loans to the [Issuer] [Trustee] and to
sell the Offered [Notes] [Certificates] to the Underwriters. Upon
execution and delivery of the [Transfer] [Pooling] and Servicing
Agreement by the [Indenture] Trustee, the [Issuer] [Trustee] will
have acquired beneficial ownership of all of the Depositor’s
right, title and interest in and to the Mortgage Loans. Upon
delivery to the Underwriters of the Offered [Notes] [Certificates],
the Underwriters will have good title to the Offered [Notes]
[Certificates] free of any Liens.
(k) As of the Cut-off Date, each of the Mortgage
Loans will meet the eligibility criteria described in the
Preliminary Prospectus and the Prospectus and will conform in all
material respects to the descriptions thereof contained in the
Prospectus. The representations and warranties set out in the
[Transfer] [Pooling] and Servicing Agreement are hereby made to the
Underwriters as though set out in full herein, and, at the dates
specified in the [Transfer] [Pooling] and Servicing Agreement, such
representations and warranties were or will be true and correct in
all material respects.
(l) 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 and the rules
and regulations of the Commission thereunder.
(m) At the Closing Date, the Offered [Notes]
[Certificates] and the [Transfer] [Pooling] and Servicing Agreement
will conform in all material respects to the descriptions thereof
contained in each Prospectus.
(n) Any taxes, fees and other governmental charges
in connection with the execution, delivery and issuance of the
Agreements and the [Notes] [Certificates] have been paid or will be
paid at or prior to the Closing Date.
(o) Since the respective dates as of which
information is given in the Final Prospectus, except as otherwise
stated therein, there has not been any material adverse change in
the general affairs, management, financial condition, or results of
operations of the Depositor or any Seller, otherwise than as set
forth or contemplated in the Prospectus as supplemented or amended
as of the Closing Date.
(p) As of [ ],
20[ ], the Depositor was not an “ineligible
issuer” as defined in Rule 405 under the Securities
Act.
(q) Any certificate signed by an officer of the
Depositor and delivered to the Representative or counsel for the
Representative in connection with an offering of the Offered
[Notes] [Certificates] shall be deemed to be, and shall state that
it is, a representation and warranty of the Depositor as to the
matters covered thereby on the date of such certificate to each
person to whom the representations and warranties in this Section 1
are made.
(r) As of the date of delivery, any Pool Information
provided to the Underwriters is true and correct in all material
respects or, if there is any material error in any Pool
Information, the Depositor has promptly provided corrected
information to the Underwriters.
(s) The Seller and the Depositor each possesses all
material licenses, certificates, permits or other authorizations
issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated
by it and as described in the Prospectus and there are no
proceedings, pending or, to the best knowledge of it, threatened,
relating to the revocation or modification of any such license,
certificate, permit or other authorization that singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect its business,
operations, results of operations, financial position, income,
property or assets.
6
SECTION 2.
Purchase and Sale
. The several commitments of the
Underwriters to purchase the Offered [Notes] [Certificates]
pursuant to this Agreement shall be deemed to have been made on the
basis of the representations and warranties herein contained and
shall be subject to the terms and conditions herein set forth. The
Depositor agrees to instruct the Administrator to issue the [Notes]
[Certificates] and agrees to sell to the Underwriters, and the
Underwriters agree (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 Offered [Notes] [Certificates] of each Class, as set forth
opposite their names on Schedule A, at the purchase price or prices
(plus accrued interest, as appropriate) as set forth on Schedule
A.
SECTION 3.
Delivery and Payment
. Delivery of and payment for the
Offered [Notes] [Certificates] 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
[ ], 20[ ], or at such
other time or date as shall be agreed upon in writing 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
Offered [Notes] [Certificates] shall be made to the
Representative for the accounts of the several Underwriters against
payment of the purchase price thereof. The Offered [Notes]
[Certificates] so delivered will, unless otherwise specified, be
initially represented by one or more [notes] [certificates]
registered in the name of Cede & Co., the nominee of The
Depository Trust Company (“DTC”). The interests of the
beneficial owners of the Offered [Notes] [Certificates] will,
unless otherwise specified, be represented by book entries on the
records of DTC and participating members thereof. Definitive
[Notes] [Certificates] will be available only, unless otherwise
specified, under the limited circumstances specified in the
[Transfer] [Pooling] and Servicing Agreement. The
Offered [Notes] [Certificates] will be made available for
examination by the Underwriters no later than 2:00 p.m. New York
City time on the Business Day immediately prior to the Closing
Date.
SECTION 4.
Offering by the
Underwriters . It is
understood that, subject to the terms and conditions hereof, the
several Underwriters propose to offer the Offered [Notes]
[Certificates] for sale to the public as set forth in the
Prospectus.
SECTION 5.
Agreements
. (a) The Depositor agrees as
follows:
(i) To prepare the Preliminary Prospectus and the
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; prior to the termination
of the offering of the Offered [Notes] [Certificates], 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 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 and any definitive
proxy or information statements required to be filed by the
Depositor with the Commission pursuant to Section 13(a), 13(c), 14
or l5(d) of the Exchange Act subsequent to the date of the 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
Offered [Notes] [Certificates]; 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 Offered [Notes]
[Certificates] for offering or sale in any jurisdiction; (iii) the
initiation of or, to the knowledge of the Depositor, 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 reasonable
best efforts to obtain the withdrawal of such order by the
Commission.
(ii) To furnish promptly to the Underwriters and to
counsel for the Underwriters upon request a signed copy of the
Registration Statement as originally filed with the Commission, and
of each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith.
(iii) To deliver promptly to the Underwriters without
charge (and in the case of clauses (ii) and (iii) below, for so
long as delivery of a prospectus is required by law in connection
with the offering or sale of the Offered [Notes] [Certificates])
such number of the following documents as the Underwriters shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each
amendment thereto (in each case including exhibits); (ii) the Final
Prospectus and any amended or supplemented Final Prospectus; and
(iii) any document incorporated by reference in the Final
Prospectus (including exhibits thereto). 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 Offered [Notes] [Certificates], 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 Offered [Notes] [Certificates] 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
Offered [Notes] [Certificates], 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 reasonable judgment of the Depositor or the Underwriters, be
required by the Securities Act or requested by the Commission.
Neither the Underwriters’ consent to nor their distribution
of any amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 6.
(v) To furnish the Underwriters and counsel for the
Underwriters, prior to filing with the Commission, the following
documents relating to the [Notes] [Certificates]: 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 Offered [Notes]
[Certificates] for offering and sale under the applicable
securities laws of such states and other jurisdictions of the
United States or elsewhere as the Underwriters may reasonably
designate prior to the execution of this Agreement, and maintain or
cause to be maintained such qualifications in effect for as long as
may be required for the distribution of the Offered [Notes]
[Certificates]. The Depositor will file or cause the filing of such
statements and reports as may be required by the laws of each
jurisdiction in which the Offered [Notes] [Certificates] have been
so qualified; provided, however , that the Depositor shall
not be required to qualify to do business in any jurisdiction where
it is not now so qualified or to take any action which would
subject it to general or unlimited service of process in any
jurisdiction where it is now so subject.
(vii) To cause the [Transfer] [Pooling] and Servicing
Agreement to provide that so long as the Offered [Notes]
[Certificates] shall be outstanding, the [Securities] Administrator
shall deliver to the Underwriters as soon as such statements are
furnished to the [Securities] Administrator: (i) the annual
statement as to compliance delivered to the [Securities]
Administrator pursuant to Section 3.16 of the [Transfer] [Pooling]
and Servicing Agreement; (ii) the annual statement of a firm
of independent public accountants furnished to the [Securities]
Administrator pursuant to Section 3.17 of the [Transfer] [Pooling]
and Servicing Agreement; (iii) the monthly servicing report
furnished to the [Securities] Administrator pursuant to Section 4.4
of the [Transfer] [Pooling] and Servicing Agreement; and (iv) the
monthly reports furnished to the [Noteholders] [Certificateholders]
pursuant to Section 4.5 of the [Transfer]
[Pooling] and Servicing Agreement.
(viii) To the extent that the Underwriters have
complied with the terms of Section 5(b) and 5A, to file with the
Commission any Free Writing Prospectus (as defined herein)
delivered to investors in accordance with Sections 5(b) and 5A as
the Depositor is required under the Regulations to file, and to do
so within the applicable period of time prescribed by the
Regulations.
(ix) The Depositor acknowledges and agrees that the
Underwriters are acting solely in the capacity of an arm's length
contractual counterparty to the Depositor with respect to the
offering of Securities contemplated hereby (including in connection
with determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Depositor or any
other person. In addition, neither the Representative nor any other
Underwriter is advising the Depositor or any other person as to any
legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Depositor shall consult with its own advisors
concerning such matters, and the Underwriters shall have no
responsibility or liability to the Depositor with respect thereto.
The Depositor has been advised that the Underwriters and their
affiliates are engaged in a broad range of transactions that may
involve interests that differ from those of the Depositor and that
the Underwriters have no obligation to disclose such interests and
transactions to the Depositor by virtue of any fiduciary, advisory
or agency relationship. Any review by the Underwriters of the
Depositor, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the
Depositor.
(b) Each Underwriter represents, warrants, covenants
and agrees with the Depositor that:
(i) It has not provided and will not provide to any
potential investor any information that would constitute
“issuer information” within the meaning of Rule 433(h)
under the Securities Act other than (x) information contained in
the Preliminary Term Sheet or (y) Custom Loan Information (each as
defined herein).
(ii) In disseminating information to potential
investors, it has complied and will continue to comply fully with
the Regulations, including but not limited to Rules 164 and 433
under the Securities Act and the requirements thereunder for filing
and retention of free writing prospectuses.
(iii) It has not disseminated and will not disseminate
any information relating to the Offered [Notes] [Certificates] in
reliance on Rule 167 or 426 under the Securities Act.
(iv) It has not disseminated and will not disseminate
any information relating to the Offered [Notes] [Certificates] in a
manner reasonably designed to lead to its broad unrestricted
dissemination within the meaning of Rule 433(d) under the
Securities Act.
(v) Each Free Writing Prospectus disseminated by
such Underwriter bore or will bear the applicable legends required
under this Agreement, and no Free Writing Prospectus disseminated
by such Underwriter bore or will bear any legend proscribed under
this Agreement.
(vi) Prior to entering into any Contract of Sale, the
Underwriter shall convey the Preliminary Prospectus to each
prospective investor. The Underwriter shall maintain sufficient
records to docum
