Exhibit 1.1
FORM OF
UNDERWRITING AGREEMENT
[Date]
[Name and
address of Representative to be provided]
Ladies and
Gentlemen:
TBALT Corp. (the “Depositor”), a
Delaware corporation, has authorized the issuance and sale of [TBW
Mortgage Pass-Through Trust
200[ ]-[ ] Mortgage Pass-Through
Certificates, Series
200[ ]-[ ]][TBW] 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
[ ],
200[ ] (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) Taylor, Bean & Whitaker Mortgage Corp., 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 maintain or cause to be maintained
such qualif
