EXHIBIT 1.1
IMH ASSETS CORP.
$_____________
(Approximately)
COLLATERALIZED ASSET-BACKED BONDS, SERIES 200_-_
UNDERWRITING AGREEMENT
____________, 200_
[Name of Underwriter]
[Address of Underwriter]
Ladies and Gentlemen:
IMH Corp., a California corporation (the "Company"), proposes to
sell
to you (also referred to herein as the "Underwriter") Impac CMB
Trust, Series
200_-_, Collateralized Asset-Backed Bonds, Series 200_-_Class A and
Class R
Bonds other than a de minimis portion thereof (collectively, the
"Bonds"),
having the aggregate principal amounts and interest rates as set
forth above.
The Bonds will represent the indebtedness of the Trust Fund (as
defined in the
Trust Agreement referred to below), to be established by the
Company. The Trust
Fund will consist of primarily of a pool (the "Mortgage Pool") of
conventional
one-to four-family, adjustable-rate first lien and fixed-rate first
and second
lien residential 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 Bonds will not be sold hereunder and
will be held
by the Indenture Trustee.
The Mortgage Loans will be master serviced pursuant to a
Servicing
Agreement (the "Servicing Agreement"), to be dated as of
____________, 200_
among IMH CMB Trust Series 200_-_,as Issuer (the "Issuer"),
________, as
Indenture Trustee (the "Indenture Trustee"), and Impac Funding
Corporation as
Master Servicer ("Impac Funding" or the "Master Servicer") and
subserviced by
____________.
Impac Mortgage Holdings, Inc. ("Impac") will sell the Mortgage
Loans to
the Company pursuant to a Mortgage Loan Purchase Agreement to be
dated as of
________ ___, 200_ (the "MLPA"), between Impac and the Company.
The Bonds will be issued pursuant to an Indenture (the "Indenture")
to
be dated as of ______ __, 200_, between the Issuer and the
Indenture Trustee and
will represent the indebtedness of the Issuer. The Issuer was
created pursuant
to a Trust Agreement, dated ____ __, 200_ (the "Trust Agreement")
among the
Company, as Depositor, _____, as Owner Trustee, and _____ as
Certificate
Registrar, Indenture Trustee and Paying Agent. The Bonds will bear
interest as
described in the Prospectus Supplement and are otherwise more fully
described in
the Base Prospectus (as hereinafter defined) and the Prospectus
Supplement,
which Base Prospectus and Prospectus Supplement the Company has
furnished to the
Underwriters.
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
Collateralized Bonds (issuable in series), including the
Bonds, 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 Bonds 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 Bonds, 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 or as
of the Closing Date the Indenture, complied in all material
respects with the applicable requirements of the Act and the
1933 Act Regulations and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), as applicable. 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 Bonds 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
Bonds and the Indenture and the Trust 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 Trust Agreement will be true and correct in
all material respects.
(g) Each of the Bonds, when validly executed,
authenticated, issued and delivered in accordance with the
Indenture 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 Indenture and will
constitute legal, valid and binding obligations of the trust
enforceable in accordance with its terms and the terms of the
Indenture, 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 Trust 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 Bonds or any of the transactions contemplated herein
(together with the Mortgage Loan Purchase Agreement, the Trust
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
Bonds, 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 Bonds 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 Bonds, 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 Indenture Trustee of the
mortgages securing the Mortgage Loans (to the extent such
recordations are required pursuant to the Servicing Agreement
or the Indenture) 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
Indenture, (1) the Issuer will own the Mortgage Loans being
pledged by it to the Indenture Trustee pursuant to the
Indenture, 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
Indenture, and will not have assigned to any person other than
the Indenture Trustee any of its right, title or interest in
its Mortgage Loans, (2) the Issuer will have the power and
authority to pledge the Trust Fund to the Indenture Trustee
and to transfer the Bonds to the Underwriters and will have
duly authorized such action, (3) upon execution and delivery
by the trust to the Indenture Trustee of the Indenture, and
delivery of the Bonds to the Issuer, the Indenture Trustee
will have a valid, perfected security interest of first
priority in the Trust Fund free of Liens other than Liens
permitted by the Indenture and (4) upon payment and delivery
of the Bonds to the Underwriters, the Underwriters will
acquire ownership of the Bonds, free of Liens other than Liens
created or granted by the Underwriters.
(m) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of the
Transaction Documents and the Bonds 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 Indenture Trustee pursuant to the
Servicing Agreement and the Indenture 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 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 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
Accountants] are independent public accountants with respect
to the Company as required by the Act and the 1933 Act
Regulations.
1.2 Each Underwriter represents and warrants to and agrees
with the Company:
(a) 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 Bonds.
(b) As of the date hereof and as of the Closing Date,
each 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
each 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 each 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 Bonds,
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 Bonds set forth opposite their respective names in
Schedule I
hereto, at a price equal to $[______________].
3.
DELIVERY AND PAYMENT. Payment for the Bonds shall be made by
wire
transfer of immediately available funds to an account designated by
the Company,
and delivery of the Bonds shall be made at the office of Thacher
Proffitt & Wood
LLP. Delivery of and payment for the Bonds 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
Bonds being herein called the "Closing Date"). Delivery of the
Bonds 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. The
Company agrees
to have the Bonds available for inspection, checking and packaging
by the
Underwriter in New York, New York not later than 1:00 p.m. on the
business day
prior to the Closing Date.
4. OFFERING BY UNDERWRITER.
4.1 It is understood that the Underwriter propose to offer the
Bonds for sale to the public as set forth in the Prospectus and
that
the Underwriter will not offer, sell or otherwise distribute the
Bonds
(except for the sale thereof in exempt transactions) in any state
in
which the Bonds are not exempt from registration under Blue Sky
laws or
state securities laws (except where the Bonds 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
Bond
or any security backed by the Mortgage Loans, any interest in any
Bond
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 Bonds 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
Bonds; provided, that you shall not accept any such offer to
purchase a Bond or any interest in any Bond or Mortgage Loan
or otherwise enter into any Contract of Sale for any Bond, any
interest in any Bond 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 Bonds used
by an Underwriter in compliance with the terms of this
Agreement prior to the time such Underwriter has entered into
a Contract of Sale for Bonds 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 Bonds referred to in this free writing
prospectus and to solicit an offer to purchase the Bonds,
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 Bonds until we have
accepted your offer to purchase Bonds. We will not accept any
offer by you to purchase Bonds, and you will not have any
contractual commitment to purchase any of the Bonds until
after you have received the Definitive Free Writing
Prospectus. You may withdraw your offer to purchase Bonds 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 Bonds and
used by an Underwriter in connection with marketing the Bonds,
including the Definitive Free Writing Prospectus, shall
prominently set forth substantially the following statement:
The Bonds referred to in these materials are being sold when,
as and if issued. You are advised that Bonds may not be issued
that have the characteristics described in these materials.
Our obligation to sell such Bonds 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 Bonds, 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 Bonds 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, an
Underwriter shall not convey or deliver any Written
Communication to any person in connection with the initial
offering of the Bonds, 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) Each 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 an 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) Each 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 Bonds after such terms have been
established for all classes of Bonds 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 an 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 an Underwriter possesses actual
knowledge that, as of the date on which an investor entered
into an agreement to purchase any Bonds, 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 does 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 Bonds 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) Each 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 Bonds. In addition, each 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 Bonds 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 Bonds;
(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 Bonds
received by such Underwriter, the identity of the
offeror, the date the offer was made and the proposed
terms and allocation of the Bonds 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 Bonds 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 Bonds 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
Bond.
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 ceritificate, substantially in the form of Exhibit
E
attached hereto, setting forth (i) if less than 10% of the
aggregate
principal balance of the Bonds 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 the Bonds 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 of the Bonds, then the weighted
average
price at which the Bonds of such class were sold expressed as a
percentage of the principal balance of the Bonds sold, or (c) the
first
single price at which at least 10% of the aggregate principal
balance
of the Bonds was sold to the public, (ii) the prepayment
assumption
used in pricing such Bonds, 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 Bonds
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 an 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 an 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 Bonds (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 Bonds, except in compliance with applicable laws and
regulations.
Each 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 Bonds,
all
information in the road show will be provided orally only, and not
as a
Written Communication. Each 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 Bonds
or
the Issuer), (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 Bonds or the Issuer), (iii) of any written
notification
received by the Company of the suspension of qualification of the
Bonds
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
Bonds)
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 Bonds in which a prospectus relating to the Bonds
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
Bonds 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 Bonds shall be
outstanding, or until such time as the Underwriter shall cease
to
maintain a secondary market in the Bonds, whichever first occurs,
to
deliver to the Underwriter the annual statements as to
compliance
delivered to the Indenture Trustee pursuant to Section 3.16 of
the
Servicing Agreement and the annual statement of a firm of
independent
public accountants furnished to the Indenture Trustee pursuant
to
Section 3.17 of the 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 Bonds 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 Bonds; 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 Bonds,
(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 Bonds, (c) fees and expenses of the Indenture Trustee and
its
counsel, (d) the fees and expenses of [Name of 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 Bonds 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 Bonds, 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 [Name of 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 Bonds.
5.9 If, during the period after the Closing Date in which a
prospectus relating to the Bonds 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 Bonds 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
Bonds.
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 Bonds after such terms have been established for
all
classes of Bonds 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 Bonds 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, each 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 Each 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 Bonds 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 Bonds shall be subject to
the
following conditions:
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 Bonds 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 Bonds 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 Servicing Agreement, the Trust Agreement and the Indenture
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
and the Issuer in this Agreement and all other Transaction
Documents to which it is a party are true and correct in all
material respects; and
(b) each of the Company and the Issuer 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 Bonds have
been rated
in one of the four highest grades by each of such
agencies rating that class of Bonds 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 [Name of Company's Counsel], counsel to
Company,
substantially to the effect set forth in Exhibit B-3.
6.6 The Underwriter shall have received from counsel for the
Underwriter 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 Bonds", "Yield on the Bonds" agrees with
the
records of the Company excluding any questions of legal
interpretation.
6.8 The Bonds 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
[Indenture 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 an 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 Prospectus, or in any Issuer
Information
contained in any other Free Writing Prospectus, or in any
Underwriter
Derived Information to the extent caused by any error in the
Pool
Information, or in the Registration Statement for the registration
of
the Bonds as originally filed or in any amendment thereof or
other
filing incorporated by reference therein, or in the Prospectus or
any
amendment thereof or other filing incorporated by reference
therein, or
arise out of or are based upon any omission or alleged omission
to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and
agrees to
reimburse each such indemnified party for any legal or other
expenses
reasonably incurred by it or him in connection with investigating
or
defending any such loss, claim, damage, liability or action;
provided,
however, that none of the Company shall be liable to the
Underwriter or
any person who controls an Underwriter to the extent that any
misstatement or alleged misstatement or omission or alleged
omission is
based upon any information with respect to which the Underwriter
have
agreed to indemnify the Company pursuant to Section 7.2.
(b) The Company agree 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 Exchange Act, from and against any and
all losses, claims, damages and liabilities caused by errors
in the Pool Information.
7.2 The Underwriter agree, several and not jointly, to
indemnify, hold harmless and reimburse the Company, each of the
directors and officers who signed the Registration Statement and
any
person controlling the Company or to the same extent as the
indemnity
set forth in clause 7.1 above from the Company to the
Underwriter;
provided, however, that the Underwriter shall be liable for
losses,
claims, damages, expenses and liabiliti
