Exhibit 1.1
IMPAC SECURED ASSETS CORP.
$____________
(Approximately)
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 200_-_
UNDERWRITING AGREEMENT
____________, 200_
[Name of Underwriter]
[Address of Underwriter]
Ladies and Gentlemen:
Impac Secured Assets Corp., a California corporation (the
"Company"),
proposes to sell to you (also referred to herein as the
"Underwriter") Mortgage
Pass-Through Certificates, Series 200_-_, Class A and Class R
Certificates other
than a de minimis portion thereof (collectively, the
"Certificates"), having the
aggregate principal amounts and Pass-Through Rates as set forth
above. The
Certificates, together with the Class M and Class B Certificates of
the same
series, will evidence the entire beneficial interest in the Trust
Fund (as
defined in the Pooling and Servicing Agreement referred to below),
consisting
primarily of a pool (the "Pool") of one-to four-family,
adjustable-rate first
lien and fixed-rate first and second lien mortgage loans (the
"Mortgage Loans")
as described in the Prospectus Supplement (as hereinafter defined)
to be sold by
the Company. A de minimis portion of the Class R Certificates will
not be sold
hereunder and will be held by the Trustee.
The Certificates will be issued pursuant to a pooling and
servicing
agreement, dated as of ____________, 200_ (the "Pooling and
Servicing
Agreement") to be dated as of __________, 200_ (the "Cut-off
Date"), among the
Company, [Impac Funding Corporation], as master servicer ("Impac
Funding
Corporation" or the "Master Servicer"), and ____________, as
trustee (the
"Trustee"). The Certificates are described more fully in the Base
Prospectus and
the Prospectus Supplement (each as hereinafter defined) which the
Company has
furnished to you.
1. REPRESENTATIONS,
WARRANTIES AND COVENANTS.
1.1 The Company represents and warrants to, and agrees with the
Underwriter as follows:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No.
333-_______) on Form S-3 for the registration under the Securities
Act
of 1933, as amended (the "Act"), of Mortgage Pass-Through
Certificates
(issuable in series), including the Certificates, which
registration
statement has become effective, and a copy of which, as amended to
the
date hereof, has heretofore been delivered to the Underwriter.
The
Company meets the requirements and all other conditions have
been
satisfied for
the use of Form S-3 under the Act. The Company proposes
to file with the Commission pursuant to Rule 424(b) under the rules
and
regulations of the Commission under the Act (the "1933 Act
Regulations") a prospectus supplement dated ___________, 200_
(the
"Prospectus Supplement"), to the prospectus dated ____________,
200_
(the "Basic Prospectus"), relating to the Certificates and the
method
of distribution thereof. Such registration statement (No.
333-______)
including exhibits thereto and any information incorporated therein
by
reference, as amended at the date hereof, is hereinafter called
the
"Registration Statement"; and the Basic Prospectus and the
Prospectus
Supplement and any information incorporated therein by
reference,
together with any amendment thereof or supplement thereto
authorized by
the Company on or prior to __________, 200_ (the "Closing Date")
for
use in connection with the offering of the Certificates, are
hereinafter called the "Prospectus". The Company prepared a
Free
Writing Prospectus containing substantially all information that
will
appear in the Prospectus Supplement and minus specific sections
including the "Method of Distribution" section (such Free
Writing
Prospectus, together with the Basic Prospectus, the "Definitive
Free
Writing Prospectus").
(b) The Registration Statement has become effective and no
stop order suspending the effectiveness of the Registration
Statement
is in effect, no proceedings for such purpose are pending before
or
threatened by the Commission, and the Registration Statement as of
the
effective date (the "Effective Date", as defined in this
paragraph),
and the Prospectus, as of the date of the Prospectus
Supplement,
complied in all material respects with the applicable requirements
of
the Act and the 1933 Act Regulations. The Registration Statement,
as of
the Effective Date, did not contain any untrue statement of a
material
fact and did not omit to state any material fact required to be
stated
therein or necessary to make the statements therein not misleading,
and
the Prospectus, as of the date of the Prospectus Supplement, did
not,
and as of the Closing Date will not, contain an untrue statement of
a
material fact and did not and will not 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 does not make any representations or
warranties as to any information contained in or omitted from
the
portions of the Prospectus. In addition, any Issuer Information
(as
defined below) contained in the Definitive Free Writing Prospectus,
as
of the date thereof and as of the time of each Contract of Sale
occurring prior to the time that Prospectus Supplement first
becomes
available for use by the Underwriter, did not contain an untrue
statement of a material fact and did not 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. The
Effective
Date shall mean the earlier of the date by which the Prospectus
Supplement is first used and the time of the first Contract of Sale
to
which such Prospectus Supplement relates. As used herein, "Pool
Information" means all loan level data with respect to the
characteristics of the Mortgage Loans and administrative and
servicing
fees, as provided by or on behalf of the Company to the
Underwriter.
The Company acknowledges that the Underwriter's Information
constitutes
the only information furnished in writing by you or on your behalf
for
use in connection with the preparation of the Registration
Statement or
the Prospectus, and you confirm that the Underwriter's Information
is
correct with respect to you and the Certificates you
underwrite.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State
of California and has the requisite corporate power and authority
to
own its properties and to conduct its business as presently
conducted
by it.
(d) The Company is not, as of the date upon which it delivers
the Definitive Free Writing Prospectus, an Ineligible Issuer, as
such
term is defined in Rule 405 of the 1933 Act Regulations.
(e) The Company is not in violation of its Certificate of
Incorporation or By Laws or any agreement the violation of which
would
have material adverse effect on the Company.
(f) As of the closing date (as defined herein), the
Certificates and the Pooling and Servicing Agreement will conform
in
all material respects to the description thereof contained in
the
Prospectus and the representations and warranties of the Company in
the
Pooling and Servicing Agreement will be true and correct in all
material respects.
(g) Each of the Certificates, when validly executed,
authenticated, issued and delivered in accordance with the Pooling
and
Servicing Agreement and paid for in accordance with this
Agreement,
will be duly and validly issued and outstanding and entitled to
the
benefits and security afforded by the Pooling and Servicing
Agreement
and will constitute legal, valid and binding obligations of the
trust
enforceable in accordance with its terms and the terms of the
Pooling
and Servicing Agreement, except as the same may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting
enforcement of creditors' rights generally and by the general
principles of equity.
(h) This Agreement has been duly authorized, executed and
delivered by each of the Company. The Pooling and Servicing
Agreement
has been, and as of the Closing Date, each of the other
agreements
entered into in connection with the issuance or delivery of the
Certificates or any of the transactions contemplated herein
(together
with the Mortgage Loan Purchase Agreement, the Pooling and
Servicing
Agreement and this Agreement, the "Transaction Documents") to which
the
Company is a party, will have been, duly authorized, executed
and
delivered by the Company and will conform in all material respects
to
the descriptions thereof contained in the Prospectus and, assuming
the
valid execution and delivery thereof by the other parties thereto,
each
Transaction Document (other than this Agreement) to which the
Company
is a party will constitute a legal, valid and binding agreement of
the
Company enforceable in accordance with its terms, except as the
same
may be limited by bankruptcy, insolvency, reorganization or
other
similar laws affecting creditors' rights generally and by
general
principles of equity.
(i) None of the issuance, delivery or sale of the
Certificates,
the execution and delivery by the Company of any of the
Transaction Documents, or the consummation of any other of the
transactions contemplated herein, nor compliance with the
provisions of
the Transaction Documents, will conflict with or result in the
breach
of any material term or provision of the certificate of
incorporation
or by-laws of the Company, and the Company is not in breach or
violation of or in default (nor has an event occurred which with
notice
or lapse of time or both would constitute a default) under the
terms of
(i) any indenture, contract, lease, mortgage, deed of trust,
note,
agreement or other evidence of indebtedness or other agreement,
obligation or instrument to which the Company is a party or by
which it
or its properties are bound, or (ii) any law, decree, order, rule
or
regulation applicable to the Company of any court or
supervisory,
regulatory, administrative or governmental agency, body or
authority,
or arbitrator having jurisdiction over the Company or its
respective
properties, the default in or the breach or violation of which
would
have a material adverse effect on the Company, the trust or the
Certificates or on the ability of the Company to perform its
respective
obligations under the Transaction Documents to which it is a party;
and
neither the delivery of the Certificates, nor the execution and
delivery of the Transaction Documents nor the consummation of any
other
of the transactions contemplated herein, nor the compliance with
the
provisions of such Transaction Documents will result in such a
breach,
violation or default which would have such a material adverse
effect.
(j) No filing or registration with, notice to, or consent,
approval, authorization or order or other action of any court
or
governmental authority or agency is required for the consummation
by
the Company of the transactions contemplated by the Transaction
Documents to which it is a party (other than as required under Blue
Sky
laws or state securities laws, as to which no representations
and
warranties are made by the Company), except such as have been, or
will
have been obtained prior to the Closing Date, and such recordations
of
the assignment to the Trustee of the mortgages securing the
Mortgage
Loans (to the extent such recordations are required pursuant to
the
Pooling and Servicing Agreement) that have not yet been
completed.
(k) There is no action, suit or proceeding before or by any
court, administrative or governmental agency now pending to which
the
Company is party, or to the best knowledge of the Company,
threatened
against the Company, which could reasonably interfere with or
materially and adversely affect the consummation of the
transactions
contemplated in the Transaction Documents.
(l) At the time of execution and delivery of the Pooling and
Servicing Agreement, (1) the trust will own the Mortgage Loans
being
pledged by it to the Trustee pursuant to the Pooling and
Servicing
Agreement, free and clear of any lien, mortgage, pledge,
charge,
encumbrance, adverse claim or other security interest
(collectively,
"Liens"), except to the extent permitted in the Pooling and
Servicing
Agreement, and will not have assigned to any person other than
the
Trustee any of its right, title or interest in its Mortgage Loans,
(2)
the trust will have the power and authority to pledge the Trust
Fund to
the Trustee and to transfer the Certificates to the Underwriter
and
will have duly authorized such action, (3) upon execution and
delivery
by the trust to the Trustee of the Pooling and Servicing Agreement,
and
delivery of the
Certificates to the trust, the Trustee will have a
valid, perfected security interest of first priority in the Trust
Fund
free of Liens other than Liens permitted by the Pooling and
Servicing
Agreement and (4) upon payment and delivery of the Certificates to
the
Underwriter, the Underwriter will acquire ownership of the
Certificates, free of Liens other than Liens created or granted by
the
Underwriter.
(m) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of the
Transaction
Documents and the Certificates have been or will be paid by the
Company
at or prior to the Closing Date, except for fees for recording
assignments of the mortgages securing the Mortgage Loans to the
Trustee
pursuant to the Pooling and Servicing Agreement that have not yet
been
completed, which fees will be paid by or on behalf of the Company
in
accordance with and if required by the Pooling and Servicing
Agreement.
(n) The Company possesses all certificates, licenses,
authorizations and permits issued by the appropriate State, Federal
or
foreign regulatory agencies or bodies necessary to conduct the
business
now conducted by it and as described in the Prospectus, and the
Company
has not received notice of any proceedings relating to the
revocation
or modification of any such license, certificate, authority or
permit
which if decided adversely to the Company would, singly or in
the
aggregate, materially and adversely affect the conduct of its
business,
operations or financial conditions.
(o)
The Company or any subservicer who will be servicing any
Mortgage Loans pursuant to the Pooling and Servicing Agreement
is
qualified to do business and possesses all necessary
certificates,
licenses and permits in all jurisdictions in which its activities
as
servicer or subservicer of the Mortgage Loans serviced by it
require
such qualifications, certificates, licenses or permits except
where
failure to be so qualified or to obtain such certificates, licenses
or
permits will not have a material adverse effect on such
servicing
activities.
(p) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined
in
the Investment Company Act of 1940, as amended.
(q) Since the respective dates as of which information is
given in the Prospectus, there has not been any material adverse
change
in the general affairs, management, financial condition, or results
of
operations of the Company, otherwise than as set forth or
contemplated
in the Prospectus as supplemented or amended as of the Closing
Date.
(r) To the best knowledge of the Company, [name of certified
public accountants] are independent public accountants with respect
to
the Company as required by the Act and the 1933 Act
Regulations.
1.2 The Underwriter represents and warrants to and agrees with
the
Company:
(a) Each Certificate is to be maintained on the book-entry
records of The Depository Trust Company ("DTC") and the interest
in
each such Certificate sold to any person on the date of initial
sale
thereof by the Underwriter will not be less than an initial
Certificate
Principal Balance [or Notional Amount] of $[25,000] with respect to
the
Certificates.
(b) Such Underwriter represents that it has in place, and
covenants that it shall maintain, internal controls and
procedures
which it reasonably believes to be sufficient to ensure full
compliance
with all applicable legal requirements with respect to the
generation
and use of Free Writing Prospectuses in connection with the
offering of
the Certificates.
(c) As of the date hereof and as of the Closing Date, the
Underwriter has complied with all of its obligations hereunder.
With
respect to all Free
Writing Prospectuses, other than the Definitive
Free Writing Prospectus, provided by the Underwriter to any
investor,
if any, such Free Writing Prospectuses are accurate in all
material
respects (taking into account the assumptions explicitly set forth
in
the Free Writing Prospectuses, except to the extent of any
errors
therein that are caused by errors in the Pool Information, and
except
for any Issuer Information therein). The Free Writing
Prospectuses,
other than the Definitive Free Writing Prospectus, provided by
the
Underwriter to the Company pursuant to Section 4.4 constitute a
complete set of all such Free Writing Prospectuses furnished to
any
investor by such
Underwriter in connection with the offering of any
Certificates, other than any Underwriter Derived Information.
2. PURCHASE AND SALE. Subject to the terms and conditions and
in
reliance upon the representations and warranties herein set forth,
the Company
agrees to sell to the Underwriter, and the Underwriter agrees to
purchase from
the Company, the Certificates set forth opposite their respective
names in
Schedule I hereto, at a price equal to $[______________].
3.
DELIVERY AND PAYMENT. Payment for the Certificates shall be made
by
wire transfer of immediately available funds to an account
designated by the
Company, and delivery of the Certificates shall be made at the
office of Thacher
Proffitt & Wood LLP. Delivery of and payment for the
Certificates shall be made
at 10:00 a.m., New York City time, on _________, 200_, or such
later date as the
Underwriter shall designate, which date and time may be postponed
by agreement
between the Underwriter and the Company (such date and time of
delivery and
payment for the Certificates being herein called the "Closing
Date"). Delivery
of the Certificates shall be made to the Underwriter through the
Depository
Trust Company ("DTC") against payment by the Underwriter of the
purchase price
thereof to or upon the order of the Company by wire transfer of
immediately
available funds.
4. OFFERING BY THE UNDERWRITER.
4.1 It is understood that the Underwriter propose to offer the
Certificates for sale to the public as set forth in the Prospectus
and that the
Underwriter will not offer, sell or otherwise distribute the
Certificates
(except for the sale thereof in exempt transactions) in any state
in which the
Certificates are not exempt from registration under Blue Sky laws
or state
securities laws (except where the Certificates will have been
qualified for
offering and sale at your direction under such Blue Sky laws or
state securities
laws). Prior to the date of the first contract of sale made based
on the
Definitive Free Writing Prospectus, you have not offered, pledged,
sold,
disposed of or otherwise transferred any Certificate or any
security backed by
the Mortgage Loans, any interest in any Certificate or such
security or any
Mortgage Loan except as set forth in Section 4.2.
4.2 It is understood that the Underwriter will solicit offers
to
purchase the Certificates as follows:
(a) Prior to the time you have received the Definitive Free
Writing Prospectus you may, in compliance with the provisions of
this
Agreement, solicit offers to purchase Certificates; provided, that
you
shall not accept any such offer to purchase a Certificate or
any
interest in any Certificate or Mortgage Loan or otherwise enter
into
any Contract of Sale for any Certificate, any interest in any
Certificate or any Mortgage Loan prior to the investor's receipt
of
Definitive Free Writing Prospectus.
(b) Any Free Writing Prospectus (other than the Definitive
Free Writing Prospectus) relating to the Certificates used by
the
Underwriter in compliance with the terms of this Agreement prior to
the
time such Underwriter has entered into a Contract of Sale for
Certificates
shall prominently set forth substantially the following
statement:
The information in this free writing prospectus is
preliminary, and will be superseded by the Definitive Free
Writing Prospectus. This free writing prospectus is being
delivered to you solely to provide you with information about
the offering of the Certificates referred to in this free
writing prospectus and to solicit an offer to purchase the
Certificates, when, as and if issued. Any such offer to
purchase made by you will not be accepted and will not
constitute a contractual commitment by you to purchase any of
the Certificates until we have accepted your offer to purchase
Certificates. We will not accept any offer by you to purchase
Certificates, and you will not have any contractual commitment
to purchase any of the Certificates until after you have
received the Definitive Free Writing Prospectus. You may
withdraw your offer to purchase Certificates at any time prior
to our acceptance of your offer.
"Written
Communication" has the same meaning as that term is defined in
Rule
405 of the 1933 Act Regulations.
(c) Any Free Writing Prospectus relating to Certificates and
used by the Underwriter in connection with marketing the
Certificates,
including the Definitive Free Writing Prospectus, shall prominently
set
forth substantially the following statement:
The Certificates referred to in these materials are being sold
when, as and if issued. You are advised that Certificates may
not be issued that have the characteristics described in these
materials. Our obligation to sell such Certificates to you is
conditioned on the mortgage loans and certificates having the
characteristics described in these materials. If for any
reason we do not deliver such Certificates, we will notify
you, and neither the issuer nor any underwriter will have any
obligation to you to deliver all or any portion of the
Certificates which you have committed to purchase, and none of
the issuer nor any underwriter will be liable for any costs or
damages whatsoever arising from or related to such
non-delivery.
4.3 It is understood that you will not enter into a Contract of
Sale
with any investor until the investor has received the Definitive
Free Writing
Prospectus. For purposes of this Agreement, Contract of Sale has
the same
meaning as in Rule 159 of the 1933 Act Regulations and all
Commission guidance
relating to Rule 159, including without limitation the Commission's
statement in
Securities Act Release No. 33-8501 that "a contract of sale can
occur under the
federal securities laws before there is a bilateral contract under
state law,
for example when a purchaser has taken all actions necessary to be
bound but a
seller's obligations remain conditional under state law." The
Definitive Free
Writing Prospectus shall prominently set forth the following
statement:
This Definitive Free Writing Prospectus supersedes the
information in any free writing prospectus previously
delivered in connection with this offering, to the extent that
this Definitive Free Writing Prospectus is inconsistent with
any information in any free writing prospectus delivered in
connection with this offering.
4.4 It is understood that you may prepare and provide to
prospective
investors certain Free Writing Prospectuses (as defined below),
subject to the
following conditions:
(a) Unless preceded or accompanied by a prospectus satisfying
the requirements of Section 10(a) of the Act, the Underwriter shall
not
convey or deliver any Written Communication to any person in
connection
with the initial offering of the Certificates, unless such
Written
Communication either (i) is made in reliance on Rule 134 under the
Act,
(ii) constitutes a prospectus satisfying the requirements of Rule
430B
under the Act, (iii) is the Definitive Free Writing Prospectus, or
(iv)
both (1) constitutes a Free Writing Prospectus (as defined below)
used
in reliance on Rule 164 and (2) includes only information that
is
within the definition of ABS Informational and Computational
Materials
as defined in Item 1100 of Regulation AB.
(b) The Underwriter shall comply in all material respects with
all applicable laws and regulations in connection with the use of
Free
Writing Prospectuses, including but not limited to Rules 164 and
433 of
the 1933 Act Regulations and all Commission guidance relating to
Free
Writing Prospectuses, including but not limited to Commission
Release
No. 33-8591.
(c) For purposes hereof, "Free Writing Prospectus" shall have
the meaning given such term in Rules 405 and 433 of the 1933
Act
Regulations. "Issuer Information" shall mean information included
in a
Free Writing Prospectus that both (i) is within the types of
information specified in clauses (1) to (5) of footnote 271 of
Commission Release No. 33-8591 (Securities Offering Reform) as
shown in
Exhibit D hereto and (ii) has been either prepared by, or has
been
reviewed and approved by, the Company as evidenced by oral,
electronic
or written communication by it or through its attorneys.
"Underwriter
Derived Information" shall refer to information of the type
described
in clause (5) of such footnote 271 when prepared by the
Underwriter.
(d) All Free Writing Prospectuses provided to prospective
investors, whether or not filed with the Commission, shall bear
a
legend on each page including the following statement:
"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 ISSUER
HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION
ABOUT THE ISSUER AND THE OFFERING. YOU MAY GET THESE
DOCUMENTS AT NO CHARGE BY VISITING EDGAR ON THE SEC
WEB SITE AT WWW.SEC.GOV. ALTERNATIVELY, THE ISSUER,
ANY UNDERWRITER OR ANY DEALER PARTICIPATING IN THE
OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS AT
NO CHARGE IF YOU REQUEST IT BY CALLING TOLL-FREE
1-8[XX-XXX-XXXX].
The Company shall have the right to require additional specific
legends
or notations to appear on any Free Writing Prospectus, the right
to
require changes regarding the use of terminology and the right
to
determine the types of information appearing therein.
(e) The Underwriter shall have delivered to the Company, no
later than two business days prior to the proposed date of first
use
thereof, (i) any Free Writing Prospectus prepared by or on behalf
of
that Underwriter that contains any information that, if reviewed
and
approved by the Company, would be Issuer Information, and (ii) any
Free
Writing Prospectus or portion thereof that contains only a
description
of the final terms of the Certificates after such terms have
been
established for all classes of Certificates being publicly offered.
No
Information in any Free Writing Prospectus shall consist of
information
of a type that is not included within the definition of ABS
Informational and Computational Materials. To facilitate filing to
the
extent required by Section 5.10 or 5.11, as applicable, all
Underwriter
Derived Information shall be set forth in a document separate from
the
document including Issuer Information. All Free Writing
Prospectuses
prepared by the Underwriter that are required to be delivered to
the
Company under this subsection (e), (i) must be approved by the
Company
before such Underwriter provides the Free Writing Prospectus to
investors pursuant to the terms of this Agreement (such approval to
be
evidenced as set forth in Section 4.4(c)(ii)), and (ii) shall
be
provided by such Underwriter to the Company, for filing as provided
in
Section 5.10 in the format as required by the Company.
(f) None of the information in the Free Writing Prospectuses
may conflict with the information contained in the Prospectus or
the
Registration Statement.
(g) The Company shall not be obligated to file any Free
Writing Prospectuses that have been determined to contain any
material
error or omission, unless the Company is required to file the
Free
Writing Prospectus pursuant to Section 5.10 below. In the event
that
the Underwriter possesses actual knowledge that, as of the date
on
which an investor entered into an agreement to purchase any
Certificates, any Free Writing Prospectus prepared by or on behalf
of
such Underwriter and delivered to such investor contained any
untrue
statement of a material fact or omitted to state a material
fact
necessary in order to make the statements contained therein, in
light
of the circumstances under which they were made, not misleading
(such
Free Writing Prospectus, a "Defective Free Writing Prospectus"),
that
Underwriter shall notify the Company thereof as soon as practical
but
in any event within one business day after discovery.
(h) If the Underwriter do not provide any Free Writing
Prospectuses to the Company pursuant to subsection (e) above,
the
Underwriter shall be deemed to have represented, as of the
Closing
Date, that they did not provide any prospective investors with
any
information in written or electronic form in connection with
the
offering of the Certificates that is required to be filed with
the
Commission by the Company as a Free Writing Prospectus (other than
the
Definitive Free Writing Prospectus) in accordance with the 1933
Act
Regulations. Information not required to be filed shall include a
Free
Writing Prospectus
containing solely Underwriter Derived Information.
(i) In the event of any delay in the delivery by the
Underwriter to the Company of any Free Writing Prospectuses
required to
be delivered in accordance with subsection (e) above, or in the
delivery of the accountant's comfort letter in respect thereof,
the
Company shall have the right to delay the release of the Prospectus
to
investors or to the Underwriter, to delay the Closing Date and to
take
other appropriate actions in each case as necessary in order to
allow
the Company to comply with its agreement set forth in Section 5.10
to
file the Free Writing Prospectuses by the time specified
therein.
(j) The Underwriter represents that it has in place, and
covenants that it shall maintain internal controls and procedures
which
it reasonably believes to be sufficient to ensure full compliance
with
all applicable legal requirements of the 1933 Act Regulations
with
respect to the generation and use of Free Writing Prospectuses
in
connection with the offering of the Certificates. In addition,
the
Underwriter shall, for a period of at least three years after the
date
hereof, maintain written and/or electronic records of the
following:
(i) Any written communications in respect of the
Certificates not deemed a Prospectus or a Free Writing
Prospectus because its content is limited to the statements
permitted by Rule 134 of the Securities Act;
(ii) any Free Writing Prospectus used to solicit
offers to purchase Certificates;
(iii) regarding each Free Writing Prospectus
delivered to a prospective investor, the date of such delivery
and identity of such prospective investor;
(iv)
regarding each offer to purchase Certificates
received by such Underwriter, the identity of the offeror, the
date the offer was made and the proposed terms and allocation
of the Certificates offered to be purchased; and
(v) regarding each Contract of Sale entered into by
such Underwriter, the date, identity of the investor and the
terms of such Contract of Sale, including the amount and price
of Certificates subject to such Contract of Sale.
(k) The Underwriter covenants with the Company that after the
final Prospectus is available that Underwriter shall not distribute
any
written information concerning the Certificates to a
prospective
investor unless such information is preceded or accompanied by
the
final Prospectus.
(l) The Underwriter agrees to provide written notice to the
Company of the date it first enters into any Contract of Sale for
a
Certificate.
4.5 The Underwriter further agrees that on or prior to the sixth
day
after the Closing Date, such Underwriter shall provide the Company
with a
certificate, substantially in the form of Exhibit E attached
hereto, setting
forth (i) in the case of each class of Certificates purchased by
such
Underwriter, (a) if less than 10% of the aggregate principal
balance or notional
amount, as applicable, of such class of Certificates has been sold
to the public
as of such date, the value calculated pursuant to clause (b)(iii)
of Exhibit E
hereto, or, (b) if 10% or more of such class of Certificates has
been sold to
the public as of such date but no single price is paid for at least
10% of the
aggregate principal balance or notional amount, as applicable of
such class of
Certificates, then the weighted average price at which the
Certificates of such
class were sold expressed as a percentage of the principal balance
or notional
amount, as applicable, of such class of Certificates sold, or (c)
the first
single price at which at least 10% of the aggregate principal
balance or
notional amount, as applicable, of such class of Certificates was
sold to the
public, (ii) the prepayment assumption used in pricing such
Certificates, and
(iii) such other information as to matters of fact as the Company
may reasonably
request to enable it to comply with its reporting requirements with
respect to
such Certificates to the extent such information can in the good
faith judgment
of such Underwriter be determined by it.
4.6 The Underwriter further agrees that (i) it will include in
every
confirmation sent out the notice required by Rule 173 informing the
investor
that the sale was made pursuant to the Registration Statement and
that the
investor may request a copy of the Prospectus from such
Underwriter; (ii) if a
paper copy of the Prospectus is requested by a person who receives
a
confirmation, such Underwriter shall deliver a paper copy of such
Prospectus;
(iii) if an electronic copy of the Prospectus is delivered by the
Underwriter
for any purpose, such copy shall be the same electronic file
containing the
Prospectus in the identical form transmitted electronically to such
Underwriter
by or on behalf of the Company specifically for use by such
Underwriter pursuant
to this Section 4.6; for example, if the Prospectus is delivered to
the
Underwriter by or on behalf of the Company in a single electronic
file in .pdf
format, then such Underwriter will deliver the electronic copy of
the Prospectus
in the same single electronic file in .pdf format; and (iv) it has
not used, and
during the period for which it has an obligation to deliver a
"prospectus" (as
defined in Section 2(a)(10) of the Act) relating to the
Certificates (including
any period during which you have such delivery obligation in its
capacity as a
"dealer" (as defined in Section 2(a)(12) of the Act)) it will not
use any
internet website or electronic media containing information for
prospective
investors, including any internet website or electronic media
maintained by
third parties, in connection with the offering of the Certificates,
except in
compliance with applicable laws and regulations. The Underwriter
further agrees
that (i) if it delivers to an investor the Prospectus in .pdf
format, upon such
Underwriter's receipt of a request from the investor within the
period for which
delivery of the Prospectus is required, such Underwriter will
promptly deliver
or cause to be delivered to the investor, without charge, a paper
copy of the
Prospectus and (ii) it will provide to the Company any Free
Writing
Prospectuses, 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.
4.7 In the event that
the Underwriter uses a road show (as defined in
Rule 433) in connection with the offering of the Certificates, all
information
in the road show will be provided orally only, and not as a
Written
Communication. The Underwriter agrees that any slideshow used in
connection with
a road show (i) will only be provided as part of the road show and
not
separately, (ii) if handed out at any meeting as a hard copy, will
be retrieved
prior to the end of the meeting, and (iii) will otherwise be used
only in a
manner that does not cause the slideshow to be treated as a Free
Writing
Prospectus.
5. AGREEMENTS. The Company agrees with the Underwriter that:
5.1 The Company will promptly advise the Underwriter (i) when
any
amendment to the Registration Statement has become effective or any
revision of
or supplement to the Prospectus has been so filed (unless such
amendment,
revision or supplement does not relate to the Certificates or the
trust), (ii)
of any request by the Commission for any amendment of the
Registration Statement
or the Prospectus or for any additional information (unless such
request for
additional information does not relate to the Certificates or the
trust), (iii)
of any written notification received by the Company of the
suspension of
qualification of the Certificates for sale in any jurisdiction or
the initiation
or threatening of any proceeding for such purpose and (iv) of the
issuance by
the Commission of any stop order suspending the effectiveness of
the
Registration Statement or the institution or, to the knowledge of
the Company,
the threatening of any proceeding for that purpose. The Company
will not file an
amendment to the Registration Statement or supplement to the
Prospectus (if such
amendment or supplement relates to the Certificates) unless the
Company has
furnished the Underwriter with a copy of such amendment for its
review prior to
such filing. The Company will use its best efforts to prevent the
issuance of
any such stop order and, if issued, to obtain as soon as possible
the withdrawal
thereof.
5.2 The Company will cause the Prospectus Supplement to be
transmitted
to the Commission for filing pursuant to Rule 424(b) under the Act
by means
reasonably calculated to result in filing with the Commission
within the time
period required by said rule. The Company will cause the Prospectus
Supplement
to be transmitted to the Commission for filing no later than the
close of
business on the business day prior to the Closing Date.
5.3 If, during the period after the first date of the public
offering
of the Certificates in which a prospectus relating to the
Certificates is
required to be delivered under the Act, any event occurs as a
result of which it
is necessary to amend or supplement the Prospectus, as then amended
and
supplemented, in order to make the statements therein, in the light
of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading,
or if it shall be necessary to amend or supplement the Prospectus
to comply with
the Act or the 1933 Act Regulations, the Company promptly will
notify the
Underwriter and will prepare and furnish, at its own expense, to
the
Underwriter, either amendments or supplements to the Prospectus so
that the
statements in the Prospectus as so amended or supplemented will
not, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, be
misleading or so that the Prospectus will comply with law.
5.4 If the Company or any Underwriter reasonably determines that
any
Written Communication or oral statement in connection with the
offering of the
Certificates contains an untrue statement of material fact or omits
to state a
material fact necessary to make the statements, in light of the
circumstances
under which they were made, not misleading at the time that a
Contract of Sale
was entered into when taken together with all information that was
conveyed to
any person with whom a Contract of Sale was entered into, and then
the
Underwriter shall provide any such person with the following:
(a) Adequate disclosure of the contractual arrangement;
(b) Adequate disclosure of the person's rights under the
existing Contract of Sale at the time termination is sought;
(c) 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
(d) A meaningful ability to elect to terminate or not
terminate the prior Contract of Sale and to elect to enter into or
not
enter into a new Contract of Sale.
5.5 The Company will furnish to the Underwriter, without charge, a
copy
of the Registration Statement (including exhibits thereto) and, so
long as
delivery of a prospectus by the Underwriter or dealer may be
required by the
Act, as many copies of the Prospectus, any documents incorporated
by reference
therein and any amendments and supplements thereto as the
Underwriter may
reasonably request; provided, however, that you will provide the
notice
specified in Section 4.6 in every confirmation and will only
deliver the
prospectus to those investors that request a paper copy
thereof.
5.6 The Company agrees, so long as the Certificates shall be
outstanding, or until such time as the Underwriter shall cease to
maintain a
secondary market in the Certificates, whichever first occurs, to
deliver to the
Underwriter the annual statements as to compliance delivered to the
Trustee
pursuant to Section 3.19 of the Pooling and Servicing Agreement and
the annual
statement of a firm of independent public accountants furnished to
the Trustee
pursuant to Section 3.20 of the Pooling and Servicing Agreement, as
soon as such
statements are furnished to the Company.
5.7 The Company will endeavor to arrange for the qualification of
the
Certificates for sale under the laws of such jurisdictions as the
Underwriter
may reasonably designate and will maintain such qualification in
effect so long
as required for the initial distribution of the Certificates and to
determine
the legality of the Certificates for purchase by institutional
investors;
provided, however, that the Company shall not be required to
qualify to do
business in any jurisdiction where it is not now so qualified or to
take any
action that would subject it to general or unlimited service of
process in any
jurisdiction where it is not now so subject.
5.8 If the transactions contemplated by this Agreement are
consummated,
the Company will pay or cause to be paid all expenses incident to
the
performance of the obligations of the Company under this Agreement,
including,
without limitation, (a) costs and taxes incident to the
authorization, sale and
delivery of the Certificates, (b) costs incident to preparation,
printing and
filing or otherwise reproducing the Registration Statement
(including any
amendments or exhibits thereto), the Prospectus, the other
Transaction Documents
and the Certificates, (c) fees and expenses of the Trustee and its
counsel, (d)
the fees and expenses of certified public accountants in connection
with any
letter(s) delivered pursuant to Section 6.7 and (e) fees and
expenses of counsel
or special counsel to the Company, and will reimburse the
Underwriter for any
expenses (including reasonable fees and disbursements of counsel)
reasonably
incurred by the Underwriter in connection with qualification of the
Certificates
for sale and determination of their eligibility for investment
under the laws of
such jurisdictions as the Underwriter have reasonably requested
pursuant to
Section 5.6 above and the printing of memoranda relating thereto,
for any fees
charged by investment rating agencies for the rating of the
Certificates, for
expenses incurred in distributing the Prospectus (including any
amendments and
supplements thereto) to the Underwriter and for any costs and
expenses
(including without limitation any damages or other amounts payable
in connection
with legal or contractual liability) associated with the reforming
of any
Contract of Sale or related actions taken by the Underwriter
pursuant to Section
5.4 to the extent caused by a breach of the representation
contained in Section
1.1(b) relating to the Definitive Free Writing Prospectus or caused
by an error
in the Pool Information. Except as herein provided, the Underwriter
shall be
responsible for paying for (a) the fees and expenses of certified
public
accountants in connection with any letter other than any letter
delivered
pursuant to Section 6.7 and (b) all costs and expenses incurred by
the
Underwriter, including the fees and disbursements of its counsel,
in connection
with the purchase and sale of the Certificates.
5.9 If, during the period after the Closing Date in which a
prospectus
relating to the Certificates is required to be delivered under the
Act, the
Company receives notice that a stop order suspending the
effectiveness of the
Registration Statement or preventing the offer and sale of the
Certificates is
in effect, the Company will advise the Underwriter of the issuance
of such stop
order. Upon receipt of notice of such stop order, the Underwriter
shall cease
all offers and sales of the Certificates.
5.10 The Company shall file, to the extent required to be filed,
any
Free Writing Prospectus prepared by the Company (including the
Definitive Free
Writing Prospectus), and any Issuer Information contained in any
Free Writing
Prospectus provided to it by the Underwriter under Section 4.4(e),
not later
than the date of first use of the Free Writing Prospectus, except
that:
(a) As to any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the
final
terms of the Certificates after such terms have been established
for
all classes of Certificates being publicly offered, such Free
Writing
Prospectus or portion thereof may be filed by the Company within
two
days of the later of the date such final terms have been
established
for all classes of Certificates being publicly offered and the date
of
first use; and
(b) Notwithstanding clause (a) above, as to any Free Writing
Prospectus or portion thereof required to be filed that contains
only
information of a type included within the definition of ABS
Informational and Computational Materials, the Company shall file
such
Free Writing Prospectus or portion thereof within the later of
two
business days after any Underwriter first provides this information
to
investors and the date upon which the Company is required to file
the
Prospectus Supplement with the Commission pursuant to Rule
424(b)(3) of
the Act;
provided further, that prior to such use of any Free Writing
Prospectuses by the
Company, the Underwriter must comply with its obligations pursuant
to Section
4.4 and that the Company shall not 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.
5.11 The Underwriter shall file any Free Writing Prospectus (other
than a Free
Writing Prospectus that is covered by Section 5.10) that has been
distributed by
such Underwriter in a manner that could lead to its broad,
unrestricted
dissemination not later than the date of first use, provided that
if that Free
Writing Prospectus contains only information of a type included
within the
definition of ABS Informational and Computational Materials then
such filing
shall be made within the later of two business days after the
Underwriter first
provide this information to investors and the date upon which the
Company is
required to file the Prospectus Supplement with the Commission
pursuant to Rule
424(b)(3) of the Act; provided further, that the Underwriter shall
not 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.
5.12 During the period when a prospectus is required by law to
be
delivered in connection with the sale of the Certificates pursuant
to this
Agreement, the Issuer will file or cause to be filed, on a timely
and complete
basis, all documents that are required to be filed by the Issuer
with the
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act
(as defined
below).
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. The
Underwriter's
obligation to purchase the Certificates shall be subject to (i) the
accuracy on
and as of the Closing Date of the representations and warranties on
the part of
the Company herein contained; (ii) the performance by the Company
of all of its
obligations hereunder; and (iii) the following conditions as of the
Closing
Date:
6.1 No stop order suspending the effectiveness of the
Registration
Statement shall be in effect, and no proceedings for that purpose
shall be
pending or, to the knowledge of the Company, threatened by the
Commission; and
the Prospectus Supplement shall have been filed or transmitted for
filing, by
means reasonably calculated to result in a filing with the
Commission not later
than the time required by Rule 424(b) under the Act.
6.2 Subsequent to the respective dates as of which information is
given
in the Registration Statement and the Prospectus, there shall not
have been any
change, or any development involving a prospective change, in or
affecting the
business or properties of the Company, the Seller or any of their
respective
affiliates the effect of which, in any case, is, in that
Underwriter's
reasonable judgment, so material and adverse as to make it
impracticable or
inadvisable to proceed with the offering or the delivery of the
Certificates as
contemplated by the Registration Statement and the Prospectus. All
actions
required to be taken and all filings required to be made by the
Issuer under the
Act and the Exchange Act prior to the sale of the Certificates
shall have been
duly taken or made.
6.3 The Company shall have delivered to the Underwriter a
certificate,
dated the Closing Date, of the President, a Senior Vice President
or a Vice
President of the Company to the effect that the signer of such
certificate has
examined this Agreement, the Prospectus, the Pooling and Servicing
Agreement and
various other closing documents, and that, to the best of his or
her knowledge
after reasonable investigation:
(a) the representations and warranties of the Company in this
Agreement and all other Transaction Documents to which it is a
party
are true and correct in all material respects; and
(b) the Company has, in all material respects, complied with
all the agreements and
satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Closing
Date.
(c) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that
purpose have been instituted or are contemplated;
(d) subsequent to the respective dates as of which information
is given in the Prospectus, and except as set forth or contemplated
in
the Prospectus, there has not been any material adverse change in
the
general affairs, business, key personnel, capitalization,
financial
condition or results of operations of the Company or the
Seller;
(e) except as otherwise stated in the Prospectus, there are no
actions, suits or proceedings pending before any court or
governmental
agency, authority or body or, to their knowledge, threatened,
against
the Company or the Seller that could reasonably have a material
adverse
affect on (i) the Company or the Seller or (ii) the
transactions
contemplated by this Agreement; and
(f) attached thereto are true and correct copies of a letter
or letters from one or more nationally recognized statistical
rating
agencies confirming that the Certificates have been rated in one of
the
four highest grades by each of such agencies rating that class
of
Certificates and that such rating has not been lowered since the
date
of such letter.
6.4 The Company shall have delivered to you a certificate, dated
the
Closing Date, of the President, a Senior Vice President or a Vice
President of
the Company to the effect that the signer of such certificate has
examined this
Agreement, the Prospectus and various other closing documents, and
that, to his
or her actual knowledge that the representations and warranties of
the Company,
respectively, in this Agreement are true and correct in all
material respects as
of the Closing Date.
6.5 The Underwriter shall have received the opinions of Thacher
Proffitt & Wood LLP, special counsel for the Company, dated the
Closing Date and
substantially to the effect set forth in Exhibit A-1, Exhibit A-2
and Exhibit
A-3 [NOTE: Exhibit A-3 will be revised to address the Definitive
Free Writing
Prospectus], the opinions of in-house counsel for the Company,
dated the Closing
Date and substantially to the effect set forth in Exhibit B-l and
Exhibit B-2
and an opinion of Sidley Austin Brown & Wood LLP, counsel to
Company,
substantially to the effect set forth in Exhibit B-3.
6.6 The Underwriter shall have received from counsel an opinion
dated
the Closing Date in form and substance satisfactory to the
Underwriter.
6.7 The Underwriter shall have received from certified public
accountants, a letter dated the date hereof and satisfactory in
form and
substance to the Underwriter and the Underwriter's counsel, to the
effect that
they have performed certain specified procedures, all of which have
been agreed
to by the Underwriter, as a result of which they determined that
certain
information of an accounting, financial or statistical nature set
forth in the
Definitive Free Writing Prospectus and the Prospectus Supplement
under the
captions "The Mortgage Pool", "Description of the Certificates",
"Yield on the
Certificates" and "Pooling and Servicing Agreement" agrees with the
records of
the Company excluding any questions of legal interpretation.
6.8 The Certificates shall have been rated at least as
described
directly below by [Standard & Poor's, a division of The
McGraw-Hill Companies,
Inc. ("S&P")] and [Moody's Investors Service, Inc.
("Moody's")].
Class
[S&P's] [Moody's]
Rating Rating
The Underwriter shall have received a copy of the letter from each
of the
respective rating agencies to such effect; and such ratings shall
not have been
withdrawn on or before the Closing Date.
6.9 The Underwriter's shall have received the opinion of
[Trustee's
counsel], dated the Closing Date, substantially to the effect set
forth in
Exhibit C.
6.10 The Underwriter shall have received from Thacher Proffitt
& Wood
LLP, special counsel to the Company, and from in-house counsel to
the Company,
reliance letters with respect to any opinions delivered to
[S&P] and [Moody's.]
6.11 The Underwriter shall have received a certificate, dated
the
Closing Date, of the President, a Senior Vice President or a Vice
President of
the Company as to the good standing of the Company and the due
authorization by
the Company of the transactions contemplated herein.
6.12 The Underwriter shall have received such further
information,
certificates and documents as the Underwriter may reasonably have
requested, and
all proceedings in connection with the transactions contemplated by
this
Agreement and all documents incident hereto shall be in all
material respects
reasonably satisfactory in form and substance to the Underwriter
and the
Underwriter's counsel.
The Company will furnish the Underwriter with conformed copies of
the
above opinions, certificates, letters and documents as reasonably
request.
If any of the conditions specified in this Section 6 shall not
have
been fulfilled in all material respects when and as provided in
this Agreement,
or, if any of the opinions and certificates mentioned above or
elsewhere in this
Agreement shall not be in all material respects reasonably
satisfactory in form
and substance to the Underwriter and its counsel, this Agreement
and all
obligations of the Underwriter hereunder may be canceled at, or at
any time
prior to, the Closing Date by the Underwriter. Notice of such
cancellation shall
be given to the Company in writing, or by telephone or telegraph
confirmed in
writing.
7. INDEMNIFICATION AND CONTRIBUTION.
7.1 (a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter
within the
meaning of either Section 15 of the Act or Section 20 of the
Securities Exchange
Act of 1934, as amended (the "Exchange Act"), from and against any
and all
losses, claims, damages, expenses (as incurred) and liabilities to
which the
Underwriter or they may become subject under the Act, the Exchange
Act, or other
federal or state statutory law or regulation, at common law or
otherwise,
insofar as such losses, claims, damages, expenses or liabilities
(or actions in
respect thereof) arise out of or are based upon or are caused by
any untrue
statement or alleged untrue statement of a material fact contained
in the
Definitive Free Writing
