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Exhibit 1.2
LARES ASSET SECURITIZATION, INC.
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES, 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
Certificates, Series 200_-_, Class [__, Class __, Class __, Class
__, Class __,
Class __, Class __ and Class __] (collectively, the "OFFERED
SECURITIES"),
issued pursuant to the Pooling and Servicing Agreement dated as of
_________,
200_ (the "POOLING AND SERVICING AGREEMENT"), among the Company, as
depositor
(the "DEPOSITOR"), Maia Mortgage Finance Statutory Trust, as seller
(the
"SELLER"), [_______________________], as servicer (the
"SERVICER"),
[_______________________], as master servicer (the "MASTER
SERVICER") and
securities administrator (in such capacity, the "SECURITIES
ADMINISTRATOR"), and
[_______________________], as trustee (the "TRUSTEE"), and the
purchase by the
Underwriters, acting severally and not jointly, of their respective
Certificate
Principal Balance of the Offered Securities set forth opposite the
names of the
Underwriters in Schedule II hereto. The Trustee, on behalf of the
Trust and the
certificateholders, will also enter into a cap agreement (the "CAP
AGREEMENT")
with [_______________________], as the cap provider (the "CAP
PROVIDER"), dated
as of _________, 200_. The Certificates are expected to be issued
on _________,
200_ (the "CLOSING DATE").
This
Agreement (as defined below), the Pooling and Servicing 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). Capitalized terms used
but not
otherwise defined herein shall have the respective meanings
ascribed thereto in
the Pooling and Servicing Agreement.
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.
__________), including a
related
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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 (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").
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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 initial Certificate Principal Balance of the
Offered
Securities set forth in Schedule II opposite such Underwriter's
name, plus any
additional Certificate Principal Balance 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 therefore 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."
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, or
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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
IV.
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, (a) no
later than two business days prior to the date of first use
thereof,
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) upon
first
use, 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 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
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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 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
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(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.
(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 1-800[xx-xxx-xxxx].
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(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 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
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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 Issuer;
(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 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;
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(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 Issuer 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
Certificates,
when
validly authenticated, issued and delivered in accordance with
the
Pooling and Servicing Agreement, 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 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
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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 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
10
<PAGE>
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 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);
11
<PAGE>
(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;
(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;
12
<PAGE>
(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, Pooling and Servicing Agreement, 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 Issuing Entity will be a valid New York common law
trust;
(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 Pooling 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
13
<PAGE>
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
Pooling and
Servicing Agreement, 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) each of the Interim Servicer and the Servicer is qualified to
do
business in all jurisdictions in which its activities as interim
servicer
or
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 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
14
<PAGE>
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 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 applicable, and
will
not
include an untrue statement of a material fact or omit 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;
(y) there are no actions, suits, proceedings, inquiries or
investigations pending or, to the knowledge of the Company,
threatened (i)
against or affecting the Company, or (ii) which have the subject
thereof
any
of the respective officers and directors of the Company or to which
the
properties, assets or rights of the Company are subject, at law or
in
equity,
