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Exhibit 1.1
LARES ASSET SECURITIZATION, INC.
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED NOTES, SERIES 200_-_
UNDERWRITING AGREEMENT
___________, 200_
_____________________________________________
as Representative of the several Underwriters
c/o _________________________________
[street address]
[city], [state] [ZIP]
Ladies and Gentlemen:
LARES ASSET SECURITIZATION, INC., a Delaware corporation (the
"COMPANY"),
confirms its agreement with each of the Underwriters listed on
Schedule I hereto
(collectively, the "UNDERWRITERS"), for whom
[_____________________] is acting
as representative (in such capacity, the "REPRESENTATIVE"), with
respect to the
sale by the Company of the Luminent Mortgage Trust 200_-_,
Mortgage-Backed
Notes, Series 200_-_, Class __, __ and __ (collectively, the
"NOTES"), issued
pursuant to the Indenture dated as of __________, 200_ (the
"INDENTURE"), among
the Luminent Mortgage Trust 200_-_ (the "ISSUING ENTITY"),
[___________________]
(the "SECURITIES ADMINISTRATOR") and [___________________] (the
"INDENTURE
TRUSTEE"), and the purchase by the Underwriters, acting severally
and not
jointly, of their respective Class Principal Amounts of the Notes
(the "OFFERED
SECURITIES") set forth opposite the names of the Underwriters in
Schedule II
hereto. The Issuing Entity is a Delaware statutory trust formed
under the laws
of the State of pursuant to a trust agreement, between the
[______________________], as owner trustee (the "OWNER TRUSTEE"),
which
agreement will be superseded by the amended and restated owner
trust agreement
(the "OWNER TRUST AGREEMENT") dated as of _________________, 200_,
among the
Company, the Owner Trustee, and the Securities Administrator. The
Mortgage Loans
were acquired by [Maia Mortgage Finance Trust, a Delaware statutory
trust] (the
"SELLER") and from a variety of originators (each, an
"ORIGINATOR"). The Seller
will sell all the Mortgage Loans to the Company, and the Company
will sell all
the Mortgage Loans to the Issuing Entity pursuant to the Transfer
and Servicing
Agreement dated as of ______________, 200_ (the "TRANSFER AND
SERVICING
AGREEMENT"), among the Issuing Entity, the Indenture Trustee, the
Company,
[_________________________], as Securities Administrator and as
master servicer
(in such capacity, the "MASTER SERVICER"), [___________________],
as servicer
(the "SERVICER"), and the Seller. The Issuing Entity has also
entered into a cap
agreement (the "CAP AGREEMENT") with [_______________________], as
the cap
provider (the "CAP PROVIDER") dated as of _____________, 200_. The
Notes are
expected to be issued on __________________, 200_ (the "CLOSING
DATE").
Capitalized terms used but not otherwise defined herein shall have
the
respective meanings ascribed thereto in the Transfer and Servicing
Agreement or,
if not defined therein, the Indenture.
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This
Agreement (as defined below), the Transfer and Servicing
Agreement,
the Indenture, the Owner Trust Agreement, the Custodial Agreement
and the Cap
Agreement are sometimes referred to herein collectively as the
"TRANSACTION
DOCUMENTS." The Offered Securities will be issued in minimum
denominations and
will have the terms set forth in the Prospectus Supplement (as
defined below).
The
Company understands that the Underwriters propose to make a
public
offering of the Offered Securities as soon as the Underwriters deem
advisable
after this Underwriting Agreement (the "AGREEMENT") has been
executed and
delivered.
The
Company has filed with the Securities and Exchange Commission
(the
"COMMISSION") a registration statement on Form S-3 (No.
333-__________ ),
including a related prospectus, for the registration of securities
including the
Offered Securities under the Securities Act of 1933, as amended
(the "SECURITIES
ACT"), and the rules and regulations thereunder (the "SECURITIES
ACT
REGULATIONS"). The Company has prepared and filed such amendments
to the
registration statement and such amendments or supplements to the
related
prospectus, if any, as may have been required to the date hereof,
and will file
such additional amendments thereto or supplements thereto as may
hereafter be
required. The registration statement has been declared effective on
___________,
200__ under the Securities Act by the Commission. The registration
statement, as
amended at the time it was declared effective by the Commission or
deemed to be
effective pursuant to Rule 430B of the Securities Act Regulations
and including
all information deemed to be a part of the registration statement
whether
through incorporation by reference, pursuant to Rule 430B of the
Securities Act
Regulations or otherwise, is hereinafter called the "REGISTRATION
STATEMENT,"
except that, if the Company files a post-effective amendment to
such
registration statement which becomes effective prior to the Closing
Time (as
defined below), "REGISTRATION STATEMENT" shall refer to such
registration
statement as so amended. Any registration statement filed pursuant
to Rule
462(b) of the Securities Act Regulations is hereinafter called the
"RULE 462(B)
REGISTRATION STATEMENT," and after such filing, the term
"REGISTRATION
STATEMENT" shall include the 462(b) Registration Statement. The
Company proposes
to file with the Commission, pursuant to Rule 424 under the
Securities Act, a
supplement to the Base Prospectus relating to the Offered
Securities and the
method of distribution thereof. The term "BASE PROSPECTUS" means
the prospectus
included in the Registration Statement as first required to be
filed to satisfy
the condition set forth in Rule 172(c) and pursuant to Rule 424(b)
of the
Securities Act Regulations, including all information incorporated
by reference
therein. The term "PROSPECTUS SUPPLEMENT" means the prospectus
supplement
specifically relating to the Offered Securities, in the form first
required to
be filed to satisfy the condition set forth in Rule 172(c) and
pursuant to Rule
424(b) of the Securities Act Regulations (including the Base
Prospectus as so
supplemented). The term "PROSPECTUS" means the final Base
Prospectus, including,
in each case, the Prospectus Supplement, as first filed with the
Commission
pursuant to Rule 424(b) of the Securities Act Regulations, and any
amendments
thereof or supplements thereto. The term "PRELIMINARY PROSPECTUS"
means any
preliminary form of the Prospectus in the form filed with the
Commission
pursuant to Rule 424(b) of the Securities Act Regulations. The
Commission has
not issued any order preventing or suspending the use of the
Registration
Statement or any Prospectus.
The
term "DISCLOSURE PACKAGE" means (i) the Base Prospectus and the
Preliminary Prospectus, as most recently amended or supplemented
immediately
prior to the Initial Sale Time
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(as defined herein), (ii) the Issuer Free Writing Prospectuses (as
defined
below), if any, identified in Schedule III hereto, and (iii) any
other Free
Writing Prospectus (as defined below) that the parties hereto shall
hereafter
expressly agree to treat as part of the Disclosure Package. If,
subsequent to
the date of this Agreement, the Company and the Underwriters have
determined
that the Disclosure Package included an untrue statement of
material fact or
omitted 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 and have terminated their old purchase contracts and
entered into new
purchase contracts with purchasers of the Offered Securities, then
the
"DISCLOSURE PACKAGE" will refer to the information available to
purchasers at
the time of entry into the first such new purchase contract,
including any
information that corrects such material misstatements or omissions
("CORRECTIVE
INFORMATION").
The
term "ISSUER FREE WRITING PROSPECTUS" means any "issuer free
writing
prospectus", as defined in Rule 433(h) of the Securities Act
Regulations. The
term "FREE WRITING PROSPECTUS" means any free writing prospectus,
as defined in
Rule 405 of the Securities Act Regulations.
The
Company and the Underwriters agree as follows:
1.
Sale and
Purchase.
Upon
the basis of the warranties, representations, agreements and
other
terms and conditions herein set forth, the Company agrees to sell
to the
Underwriters and each Underwriter agrees, severally and not
jointly, to purchase
from the Company the Class Principal Amounts of the Offered
Securities set forth
in Schedule II opposite such Underwriter's name, plus any
additional Class
Principal Amounts of the Offered Securities which such Underwriter
may become
obligated to purchase pursuant to the provisions of Section 9
hereof, subject,
in each case, to such adjustments among the Underwriters as the
Representative
in its sole discretion shall make to eliminate any sales or
purchases of
fractional securities.
2.
Payment and
Delivery.
The
Offered Securities to be purchased by each Underwriter hereunder,
in
book entry form, and in such authorized denominations and
registered in such
names as the Representative shall request, shall be delivered by or
on behalf of
the Company to the Representative through the facilities of The
Depository Trust
Company ("DTC") for the account of such Underwriter, against
payment by or on
behalf of such Underwriter of the purchase price therefor by wire
transfer of
Federal (same-day) funds to the account specified to the
Representative by the
Company upon at least forty-eight hours' prior notice. The Company
will cause
the certificates representing the Offered Securities to be made
available for
checking and packaging at least twenty-four hours prior to the
Closing Time (as
defined below) with respect thereto at the office of the
Representative, [street
address], [city], [state] [ZIP], or at the office of DTC or its
designated
custodian, as the case may be (the "DESIGNATED OFFICE"). The time
and date of
such delivery and payment shall be _:__ [a.m./p.m.], New York City
time, on the
Closing Date (unless another time and date shall be agreed to by
the
Representative and the Company). The time and date at which such
payment and
delivery are actually made is hereinafter sometimes called the
"CLOSING TIME."
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3.
Offering by
Underwriters.
(a) It is understood that the several Underwriters propose to
offer
the
Offered Securities for sale to the public as set forth in the
Prospectus and that no Underwriter will offer, sell or otherwise
distribute
the
Offered Securities (except for the sale thereof in exempt
transactions)
in
any state in which the Offered Securities are not exempt from
registration under "blue sky" or state securities laws (except
where the
Offered Securities will have been qualified for offering and sale
at such
Underwriter's direction under such "blue sky" or state securities
laws).
(b) In connection with the offering of the Offered Securities,
the
Underwriters may each prepare and provide to prospective investors
Free
Writing Prospectuses (as defined below), or portions thereof, which
the
Company is required to file with the Commission in electronic
format and
will
use reasonable efforts to provide to the Company such Free
Writing
Prospectuses, or portions thereof, in either Microsoft Word(R) or
Microsoft
Excel(R) format and not in a PDF, except to the extent that the
Company, in
its
sole discretion, waives such requirements, subject to the
following
conditions (to which such conditions each Underwriter agrees
(provided that
no
Underwriter is responsible for any breach of the following
conditions by
any
other Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriter shall not convey or deliver any written communication
to
any person in connection with the initial offering of the
Offered
Securities, unless such written communication (1) is made in
reliance
on Rule 134 of the Securities Act Regulations, (2) constitutes
a
prospectus satisfying the requirements of Rule 430B of the
Securities
Act Regulations or (3)
constitutes a Free Writing Prospectus and such
Free Writing Prospectus is attached to this Agreement as Schedule
III.
The Underwriter shall not convey or deliver in connection with
the
initial offering of the Offered Securities any "ABS informational
and
computational material," as defined in Item 1101(a) of Regulation
AB
of the Securities Act Regulations ("ABS INFORMATIONAL AND
COMPUTATIONAL MATERIAL"), in reliance upon Rules 167 and 426 of
the
Securities Act Regulations.
(ii) Each Underwriter shall deliver to the Depositor, no later
than two business days prior to the date of first use thereof, (a)
any
Free Writing Prospectus prepared by or on behalf of such
Underwriter
that contains any "issuer information," as defined in Rule 433(h)
of
the Securities Act Regulations and footnote 271 of the
Commission's
Securities Offering Reform Release No. 33-8591 ("ISSUER
INFORMATION")
(which the parties hereto agree includes, without limitation,
Pool
Information (as defined herein)), and (b) any Free Writing
Prospectus
or portion thereof that contains only a description of the final
terms
of the Offered Securities. Notwithstanding the foregoing, any
Free
Writing Prospectus that contains only ABS Informational and
Computational Materials shall be delivered by any Underwriter to
the
Company not later than the later of (a) two business days prior to
the
due date for filing of the Prospectus pursuant to
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Rule 424(b) under the Securities Act and (b) the date of first use
of
such Free
Writing Prospectus.
(iii) Each Underwriter represents and warrants to the Company
that the Free Writing Prospectuses to be furnished to the Company
by
such Underwriter pursuant to Section 3(b)(ii) above will
constitute
all Free Writing Prospectuses of the type described in such
Section
that were furnished to prospective investors by such Underwriter
in
connection with its offer and sale of the Offered Securities.
(iv) Each Underwriter represents and warrants to the Company
that
each Free Writing Prospectus required to be provided by it to
the
Company pursuant to Section 3(b)(ii) above, did not, as of the Time
of
Sale, and will not as of the Closing Date, include any untrue
statement of a material fact or, when read in conjunction with
the
other information included in the Disclosure Package, omit any
material fact necessary to make the statements contained therein,
in
light of the circumstances under which they were made, not
misleading;
provided however, that such Underwriter makes no representation to
the
extent such misstatements or omissions were the result of any
inaccurate Issuer Information supplied by the Company to such
Underwriter, which information was not corrected by Corrective
Information subsequently supplied by the Company to such
Underwriter
prior to the Time of Sale.
(v) The Company agrees to file with the Commission the
following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof delivered
by any Underwriter to the Company pursuant to Section 3(b)(ii);
and
(C) Any Free Writing Prospectus for which the Company or any
person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a
person unaffiliated with the Company or any other offering
participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating
communications.
(vi) Any Free Writing Prospectus required to be filed pursuant
to
Section 3(b)(v) by the Company shall be filed with the Commission
not
later than the date of first use of the Free Writing
Prospectus,
except that:
(A) Any Free Writing Prospectus or portion thereof required
to be filed that contains only the description of the final
terms
of the Offered Securities shall be filed by the Company with
the
Commission within two days of the later of the date such final
terms have been established for all classes of Offered
Securities
and the date of first use;
(B) Any Free Writing Prospectus or portion thereof required
to be filed that contains only ABS Informational and
Computational Material
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shall be filed by the Company with the Commission not later
than
the later of the due date for filing the final Prospectus
relating to the Offered Securities pursuant to Rule 424(b) of
the
Securities Act Regulations and two business days after the
first
use of such Free Writing Prospectus;
(C) Any Free Writing Prospectus required to be filed
pursuant to Section 3(b)(v)(C) shall, if no payment has been
made
or consideration has been given by or on behalf of the Company
for the Free Writing Prospectus or its dissemination, be filed
by
the Company with the Commission not later than four business
days
after the Company becomes aware of the publication, radio or
television broadcast or other dissemination of the Free Writing
Prospectus; and
(D) The Company shall not be required to file (1) Issuer
Information contained in any Free Writing Prospectus of an
Underwriter or any other offering participant other than the
Company, if such information is included or incorporated by
reference in a prospectus or Free Writing Prospectus previously
filed with the Commission that relates to the offering of the
Offered Securities or (2) any Free Writing Prospectus or
portion
thereof that contains a description of the Offered Securities
or
the offering of the Offered Securities which does not reflect
the
final terms thereof.
(vii) Each Underwriter shall file with the Commission any Free
Writing Prospectus that is used or referred to by it and
distributed
by or on behalf of the Underwriter in a manner reasonably designed
to
lead to its broad, unrestricted dissemination not later than the
date
of the first use of such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section 3(b)(vii),
each
Underwriter shall file with the Commission any Free Writing
Prospectus
for which such Underwriter or any person acting on its behalf
provided, authorized or approved information that is prepared
and
published or disseminated by a person unaffiliated with the Company
or
any other offering participant that is in the business of
publishing,
radio or television broadcasting or otherwise disseminating
written
communications and for which no payment was made or
consideration
given by or on behalf of the Company or any other offering
participant, not later than four business days after such
Underwriter
becomes aware of the publication, radio or television broadcast
or
other dissemination of the Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 3(b)(v) and
3(b)(vii), neither the Company nor any Underwriter shall be
required
to file any Free Writing Prospectus that does not contain
substantive
changes from or additions to a Free Writing Prospectus
previously
filed with the Commission.
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(x) The Company and each Underwriter each agree that any Free
Writing Prospectuses prepared by it shall contain the following
legend:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication
relates. Before you invest, you should read the prospectus in
that
registration statement and other documents the depositor has
filed
with the SEC for more complete information about the depositor,
the
issuing trust, and this offering. You may get these documents for
free
by visiting EDGAR on the SEC Web site at www.sec.gov.
Alternatively,
the depositor, any underwriter or any dealer participating in
the
offering will arrange to send you the prospectus if you request it
by
calling toll-free 1-8[xx-xxx-xxxx].
(xi) The Company and each Underwriter agree to retain all Free
Writing Prospectuses that they have used and that are not required
to
be filed pursuant to this Section 3 for a period of three years
following the initial bona fide offering of the Offered
Securities.
(A) In the event that any Underwriter becomes aware that, as
of the Time of Sale, any Free Writing Prospectus prepared by or
on behalf of an Underwriter and delivered to an investor
contained any untrue statement of a material fact or, when read
in conjunction with the other information included in the
Disclosure Package, omitted to state a material fact necessary
in
order to make the statements contained therein, in the light of
the circumstances under which they were made, not misleading
(such Free Writing Prospectus, a "DEFECTIVE FREE WRITING
PROSPECTUS"), such Underwriter shall notify the Company thereof
within one business day after discovery.
(B) Provided that the Defective Free Writing Prospectus was
an Issuer Free Writing Prospectus or contained Issuer
Information, such Underwriter shall, if requested by the
Company:
(1)
Prepare a Free Writing Prospectus with Corrective
Information that corrects the material misstatement in or
omission from the Defective Free Writing Prospectus (such
corrected Free Writing Prospectus, a "CORRECTED FREE WRITING
PROSPECTUS");
(2) Deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with
such investor; provided if the Time of Sale has occurred
with respect to such investor, the Underwriter shall provide
such investor with (w) adequate disclosure of the
contractual arrangement, (x) adequate disclosure of the
person's rights under the existing contract of sale at the
time termination is sought, (y) adequate disclosure of the
new information that is necessary to correct the
misstatements or
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omissions in the information given at the time of the
original contract of sale, and (z) a meaningful ability to
elect to terminate or not to terminate the prior contract of
sale and to elect to enter into or not enter into a new
contract of sale; and
(3) In the event that the Defective Free Writing
Prospectus was an Issuer Free Writing Prospectus or
contained Issuer Information, and the Underwriters shall in
good faith incur any costs to any investor in connection
with the reformation of the contract of sale with the
investor, the Company agrees to reimburse the Underwriters
for such costs; provided that, before incurring such costs,
in Underwriters first permit the Company access to the
applicable investor and an opportunity to attempt to
mitigate such costs through direct negotiation with such
investor.
(xii) Each Underwriter covenants with the Company that after
the final Prospectus is available such Underwriter shall not
distribute any written information concerning the Offered
Securities to a prospective investor unless such information is
preceded or accompanied by the final Prospectus.
(xiii) Each Underwriter covenants and agrees with the
Company that it shall not accept any offer to purchase Offered
Securities until the time at least 24 hours after the time the
related offeree received the Preliminary Prospectus, or such
shorter period as such Underwriter and the Company shall agree.
(c) Each Underwriter has furnished or will furnish the
Disclosure
Package to purchasers of the Offered Securities prior to the Time
of
Sale.
(d) Each Underwriter represents and agrees that:
(i) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity
(within
the meaning of Section 21 of the Financial Services and Markets
Act) received by it in connection with the issue or sale of the
Offered Securities in circumstances in which Section 21(1) of
the
Financial Services and Markets Act does not apply to the
Issuing
Entity;
(ii) it has complied and will comply with all applicable
provisions of the Financial Services and Markets Act with
respect
to anything done by it in relation to the Offered Securities
in,
from or otherwise involving the United Kingdom; and
(iii) in relation to each Member State of the European
Economic Area which has implemented the Prospectus Directive
(each, a "RELEVANT MEMBER STATE"), with effect from and
including
the date on which the Prospectus Directive is implemented in
that
Relevant Member State (the "RELEVANT IMPLEMENTATION DATE") it
has
not made and will not make an offer of Offered Securities to
the
public in that Relevant Member State prior to the publication
of
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a prospectus in relation to the Offered Securities which has
been
approved by the competent authority in that Relevant Member
State
or, where appropriate, approved in another Relevant Member
State
and notified to the competent authority in that Relevant Member
State, all in accordance with the Prospectus Directive, except
that it may, with effect from and including the Relevant
Implementation Date, make an offer of the Offered Securities to
the public
in that Relevant Member State at any time:
(x) to legal entities which are authorized or regulated
to operate in the financial markets or, if not so authorized
or regulated, whose corporate purpose is solely to invest in
securities;
(y) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial
year; (2)
a total balance sheet of more than
(euro)43,000,000 and (3) an annual net turnover of more than
(euro)50,000,000, as shown in its last annual or
consolidated accounts; or
(z) in any other circumstances which do not require the
publication by the Issuing Entity of a prospectus pursuant
to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an "offer of
securities to
the public" in relation to any Offered Securities in any Relevant
Member State
means the communication in any form and by any means of sufficient
information
on the terms of the offer and the securities to be offered so as to
enable an
investor to decide to purchase or subscribe the securities, as the
same may be
varied in that Member State by any measure implementing the
Prospectus Directive
in that Member State and the expression "Prospectus Directive"
means Directive
2003/71/EC and includes any relevant implementing measure in each
Relevant
Member State.
4.
Representations and Warranties of the Company.
The
Company (or, with respect to Section 4(oo) only, the Sponsor)
represents and warrants to the Underwriters, as of the date of this
Agreement,
each Time of Sale (as defined below), and as of the Closing Time,
and agrees
with each Underwriter that:
(a) the Offered Securities conform in all material respects to
the
description thereof contained in each of the Disclosure Package,
the
Registration Statement and the Prospectus, and each of the Notes,
when
validly authenticated, issued and delivered in accordance with
the
Indenture, will be duly and validly issued and outstanding, will
constitute
the
legal, valid and binding obligations of the Issuing Entity,
enforceable
in
accordance with their terms, subject, as to enforceability, to
bankruptcy, insolvency and similar laws affecting the rights of
creditors
generally and to general principles of equity, and will be entitled
to the
benefits and security afforded by the Pooling and Servicing
Agreement;
(b) the Company has been duly incorporated and is existing as a
corporation in good standing under and by virtue of the laws of the
State
of
[Delaware], with all requisite corporate power and authority to
own,
lease and operate its properties, and
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conduct its business as described in each of the Disclosure
Package, the
Registration Statement and the Prospectus, and is duly qualified as
a
foreign entity to transact business or is licensed and is in good
standing
in
each jurisdiction in which it conducts its business or in which it
owns,
leases or operates real property or otherwise maintains an office
and in
which the failure, individually or in the aggregate, to be so
qualified or
licensed could have a material adverse effect on the assets,
business,
operations, earnings, prospects, properties or condition (financial
or
otherwise), present or prospective, of the Company (any such effect
or
change, where the context so requires, is hereinafter called a
"MATERIAL
ADVERSE EFFECT" or "MATERIAL ADVERSE CHANGE"); other than as
disclosed in
the
Prospectus, the Company does not own, directly or indirectly,
any
capital stock or other equity securities of any other corporation
or any
ownership interest in any partnership, joint venture or other
association;
(c) the Company has delivered to the Representative the
complete
Disclosure Package and complete manually signed copies of the
Registration
Statement and of each consent and certificate of experts filed as a
part
thereof, and conformed copies of the Registration Statement
(without
exhibits) and the Prospectus, as amended or supplemented, in
such
quantities and at such places as the Representative has
reasonably
requested for delivery to each of the Underwriters;
(d) each of the Registration Statement and any Rule 462(b)
Registration Statement have been declared effective under the
Securities
Act
by the Commission and no stop order suspending the effectiveness of
the
Registration Statement or any Rule 462(b) Registration Statement
has been
issued under the Securities Act and no proceedings for that purpose
have
been
instituted or are pending or, to the best knowledge of the
Company,
are
contemplated or threatened by the Commission, and the Company
has
complied to the Commission's satisfaction with any request on the
part of
the
Commission for additional or supplemental information; any
Preliminary
Prospectus when filed with the Commission, and the Registration
Statement
as
of each effective date and as of the date hereof, complied or
will
comply, and the Prospectus and any further amendments or
supplements to the
Registration Statement, the Preliminary Prospectus or the
Prospectus will,
when
they become effective or are filed with the Commission, as the
case
may
be, comply, in all material respects with the requirements of
the
Securities Act and the Securities Act Regulations, and the
Registration
Statement, as of each effective date, did not, and as of the date
hereof
does
not and as of each Time of Sale and as of the Closing Time will
not,
contain any untrue statement of a material fact or omit to state a
material
fact
required to be stated therein or necessary to make the
statements
therein not misleading; and the Preliminary Prospectus does not,
and the
Prospectus or any amendment or supplement thereto will not, as of
the date
of
the Preliminary Prospectus Supplement, the applicable filing date,
and
at
the Closing Time, 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, however, that the Company makes no
representations or
warranties as to the information contained in or omitted from
the
Registration Statement, the Preliminary Prospectus or the
Prospectus or any
revision or amendment thereof or supplement thereto in reliance
upon and in
conformity with information furnished in writing to the Company by
any
Underwriter through the Representative specifically for
10
<PAGE>
use
in connection with the preparation thereof or any revision or
amendment
thereof or supplement thereto (that information being limited to
that
described in the next to last sentence of the first paragraph of
Section
10(b) hereof), or any information in any Free Writing Prospectus
required
to
be provided by any Underwriter pursuant to Section 3(b), except to
the
extent that such information constitutes Pool Information or
Issuer
Information supplied to such Underwriter by the Company. As used
herein,
"POOL INFORMATION" means information with respect to the
assumed
characteristics of the Mortgage Loans and administrative and
servicing
fees. The Company acknowledges that the Underwriter Information (as
defined
herein) constitutes the only information furnished in writing by
any
Underwriter or on behalf of any Underwriter for use in connection
with the
preparation of the Registration Statement or the Prospectus
Supplement.
There are no contracts or documents of the Company which are
required to be
filed as exhibits to the Registration Statement pursuant to the
Securities
Act
or the Securities Act 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;
(e) as of _:__ [a.m./p.m.] (Eastern time) __________, 200__
(the
"INITIAL SALE TIME"), the Disclosure Package did not, and at the
time of
each
sale of Offered Securities (including the Initial Sale Time, each,
a
"TIME OF SALE") and at the Closing Time, the Disclosure Package
will not,
contain 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, not
misleading;
other than the Preliminary Prospectus and the Prospectus, the
Company
(including its agents and representatives other than the
Underwriters in
their capacity as such) has not made, used, prepared, authorized,
approved
or
referred to and will not make, use, prepare, authorize, approve or
refer
to any "written
communication" (as defined in Rule 405 of the Securities
Act
Regulations) that constitutes an offer to sell or solicitation of
an
offer to buy the Offered Securities other than (i) the Series Term
Sheet
dated as of _______, 200__ (the "SERIES TERM SHEET"), (ii) any
document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the
Securities
Act
or Rule 134 of the Securities Act Regulations or (iii) the
documents
listed on Schedule III hereto and other written communication
approved in
writing in advance by the Company; each such Issuer Free Writing
Prospectus
complied in all material respects with the Securities Act, has been
filed
in
accordance with Section 3 (to the extent required thereby) and did
not
at
any Time of Sale, and at the Closing Date will not, contain any
untrue
statements of a material fact or (when read in conjunction with the
other
information included in the Disclosure Package) 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 the
Company makes no representation and warranty with respect to any
statements
or
omissions made in reliance upon and in conformity with
information
relating to any Underwriter furnished to the Company in writing by
such
Underwriter expressly for use in any Issuer Free Writing
Prospectus; and as
of
its issue date or date of first use and at all subsequent times
through
the
Initial Sale Time, each Issuer Free Writing Prospectus did not, and
at
each
Time of Sale and at the Closing Time, each such Issuer Free
Writing
Prospectus will not, contain any untrue statement of a material
fact or
(when read in conjunction with the other information included in
the
Disclosure Package) omit to state
11
<PAGE>
any
material fact necessary in order to make the statements therein, in
the
light of the circumstances under which they were made, not
misleading;
provided, however, that the Company makes no warranty or
representation
with
respect to any statement contained in or omitted from the
Disclosure
Package in reliance upon and in conformity with the information
concerning
the
Underwriters and furnished in writing by or on behalf of the
Underwriters through the Representative to the Company expressly
for use
therein (that information being limited to that described in the
next to
last
sentence of the first paragraph of Section 10(b) hereof);
(f) each Issuer Free Writing Prospectus, as of its issue date and
at
all
subsequent times through the completion of the public offer and
sale of
the
Offered Securities did not, does not and will not include any
information that conflicted, conflicts or will conflict with
the
information contained in the Registration Statement or the
Prospectus,
including any document incorporated by reference therein that has
not been
superseded or modified;
(g) the Company is eligible to use Free Writing Prospectuses in
connection with the offering contemplated hereby pursuant to Rules
164 and
433
of the Securities Act Regulations; any Free Writing Prospectus that
the
Company is required to file pursuant to Rule 433(d) under the
Securities
Act
Regulations has been, or will be, filed with the Commission in
accordance with the requirements of the Securities Act and the
Securities
Act
Regulations; and each Free Writing Prospectus that the Company
has
filed, or is required to file, pursuant to Rule 433(d) under the
Securities
Act
Regulations or that was prepared by or on behalf of or used by
the
Company complies or will comply in all material respects with
the
requirements of the Securities Act and the Securities Act
Regulations;
(h) except for the Issuer Free Writing Prospectuses identified
in
Schedule III hereto, the Company has not prepared, used or referred
to, and
will
not, without the prior consent of the Representative, prepare, use
or
refer to, any Free Writing Prospectus;
(i) the Preliminary Prospectus, the Prospectus and any Issuer
Free
Writing Prospectuses (to the extent any such Issuer Free Writing
Prospectus
was
required to be filed with the Commission) delivered to the
Underwriters
for
use in connection with the public offering of the Offered
Securities
contemplated herein have been and will be identical to the versions
of such
documents transmitted to the Commission for filing via the
Electronic Data
Gathering Analysis and Retrieval System ("EDGAR"), except to the
extent
permitted by Regulation S-T;
(j) the Company filed the Registration Statement with the
Commission
before using any Issuer Free Writing Prospectus;
(k) the Company has not distributed and will not distribute, prior
to
the
completion of the Underwriters' distribution of the Offered
Securities,
any
prospectus or other offering materials in connection with the
offering
and
sale of the Offered Securities other than the Disclosure Package,
the
Prospectus or the Registration Statement;
12
<PAGE>
(l) after the date of the Preliminary Prospectus the Company has
not
delivered and will not deliver any written communication to any
third
parties in connection with the initial offering of the Offered
Securities
other than the Preliminary Prospectus and the Prospectus;
(m) the Company is in compliance in all material respects with
all
applicable laws, rules, regulations, orders, decrees and
judgments,
including those relating to transactions with affiliates;
(n) the Company is not in violation of its certificate of
incorporation, as amended or restated (the "CERTIFICATE OF
INCORPORATION"),
or
its bylaws, and the Company is not in breach of or default in (nor
has
any
event occurred which with notice, lapse of time, or both would
constitute a breach of, or default in) the performance or
observance of any
obligation, agreement, contract, franchise, covenant or condition
contained
in
any license, indenture, mortgage, deed of trust, loan or credit
agreement, lease or other agreement or instrument to which the
Company is a
party or by which the Company or its properties is bound, except
for such
breaches or defaults which could not have a Material Adverse
Effect;
(o) the execution, delivery and performance of this Agreement and
each
other Transaction Document, the issuance, sale and delivery by the
Company
of
the Offered Securities and the consummation of the transactions
contemplated herein and therein will not (i) conflict with, or
result in
any
breach or constitute a default (nor constitute any event which
with
notice, lapse of time, or both would constitute a breach or
default), (A)
by
the Company of any provision of the organizational documents of
the
Company or (B) of any provision of any obligation, agreement,
contract,
franchise, license, indenture, mortgage, deed of trust, loan or
credit
agreement, lease or other agreement or instrument to which the
Company is a
party or by which the Company or its properties may be bound or
affected,
or
(C) under any federal, state, local or foreign law, regulation or
rule
or
any decree, judgment or order applicable to the Company, except for
such
breaches, defaults, conflicts, liens, charges or encumbrances which
could
not
have a Material Adverse Effect; or (ii) result in the creation
or
imposition of any lien, charge, claim or encumbrance upon any
property or
asset of the Company;
(p) this Agreement has been, and the other Transaction Documents
at
the
Closing Time shall have been duly authorized, executed and
delivered by
the
Company and constitute legal, valid and binding agreements of
the
Company, and such other Transaction Documents are enforceable in
accordance
with
their terms, except as may be limited by bankruptcy,
insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights
generally, and by general equitable principles;
(q) as of the Closing Date, this Agreement and the other
Transaction
Documents conform in all material respects to the descriptions
thereof
contained in the Registration Statement and Prospectus. On the
Closing
Date, the Owner Trust Agreement Issuing Entity will be effective
to
establish the Issuing Entity as a valid statutory trust under the
laws of
the
State of Delaware;
13
<PAGE>
(r) the Company has the full legal right, corporate power and
authority to enter into this Agreement and the other Transaction
Documents
and
to consummate the transactions contemplated herein and therein, and
the
Company has the corporate power to sell and deliver the Offered
Securities
as
provided herein;
(s) upon execution and delivery of the Transfer and Servicing
Agreement, (i) immediately prior to their transfer to the Issuing
Entity,
the
Company will own the Mortgage Loans being transferred to the
Issuing
Entity pursuant thereto, free and clear of any lien, charge,
encumbrance,
adverse claim or other security interest, except to the extent
permitted in
the
Pooling and Servicing Agreement, and will not have assigned to
any
person other than the Issuing Entity any of its right, title or
interest in
the
Mortgage Loans, (ii) the Company will have the power and authority
to
transfer the Mortgage Loans to the Issuing Entity and to transfer
the
Offered Securities to the several Underwriters, (iii) upon their
transfer
to
the Issuing Entity, the Issuing Entity will own the Mortgage Loans
free
of
liens, other than liens permitted by the Indenture, and (iv)
upon
payment and delivery of the Offered Securities to the several
Underwriters,
the
several Underwriters will acquire ownership of their respective
Offered
Securities, free of any lien, charge, encumbrance, adverse claim or
other
security interest, except to the extent permitted by the Pooling
and
Servicing Agreement;
(t) any taxes, fees and other governmental charges in connection
with
the
execution, delivery and performance of this Agreement and the
other
Transaction Documents and the issuance of the Offered Securities
have been
or
will be paid by the Company on or prior to the Closing Date, except
for
fees
for recording assignments of the Mortgage Loans to the Issuing
Entity
pursuant to the Pooling and Servicing Agreement, that have not yet
been
completed, which fees will be paid in accordance with the Pooling
and
Servicing Agreement;
(u) the Servicer is qualified to do business in all jurisdictions
in
which its activities as servicer of the Mortgage Loans require
such
qualification except where failure to be so qualified will not have
a
material adverse effect on such servicing activities;
(v) no approval, authorization, consent or order of, or
registration
or
filing with any federal, state or local governmental or
regulatory
commission, board, body, authority or agency is required for the
Company's
execution, delivery and performance of this Agreement or any
other
Transaction Document, its consummation of the transactions
contemplated
herein or therein, and its sale and delivery of the Offered
Securities,
other than (i) such as have been obtained, or will have been
obtained at
the
Closing Time, under the Securities Act and the Securities Exchange
Act
of
1934 (the "EXCHANGE ACT"), and (ii) any necessary qualification
under
the
securities or blue sky laws of the various jurisdictions in which
the
Offered Securities are being offered by the Underwriters;
(w) the Company has all necessary licenses, authorizations,
consents
and
approvals, possesses valid and current certificates, has made
all
necessary filings required under any federal, state or local
law,
regulation or rule, and has obtained all necessary
14
<PAGE>
authorizations, consents and approvals from other persons, required
in
order to conduct its business as described in each of the
Disclosure
Package, the Registration Statement and the Prospectus, except to
the
extent that any failure to have any such licenses, authorizations,
consents
or
approvals, to make any such filings or to obtain any such
authorizations, consents or approvals could not, individually or in
the
aggregate, have a Material Adverse Effect; the Company is not in
violation
of,
in default under, nor has the Company received any notice regarding
a
possible violation, default or revocation of any such certificate,
license,
authorization, consent
or approval or any federal, state, local or foreign
law,
regulation or rule or any decree, order or judgment applicable to
the
Company the effect of which could result, individually or in the
aggregate,
in a
Material Adverse Change; and no such license, authorization,
consent
or
approval contains a materially burdensome restriction that is
not
adequately disclosed in each of the Disclosure Package, the
Registration
Statement and the Prospectus;
(x)
each document incorporated by reference in the Registration
Statement, the Prospectus or the Disclosure Package, when it
became
effective or was 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 Securities Act Regulations and
the
Exchange Act Regulations (as defined herein), and none of such
documents,
contained an untrue statement of a material fact or omitted to
state a
material fact required to be stated therein or necessary in order
to make
the
statements therein, in the light of the circumstances under which
they
were
made, not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, the
Prospectus, or
the
Disclosure Package any further amendment or supplement thereto,
when
such
documents become effective or are filed with the Commission, as
the
case
may be, will conform in all ma
