ASSET SECURITIES
COMPANY
$ [
]
(Approximate)
Asset Backed
[Certificates][Notes]
Series 20[ ]-[ ]
[
], [
]
UNDERWRITING AGREEMENT
|
[
]
as
Representative of the several Underwriters
[
]
|
|
Ladies and Gentlemen:
Saxon Asset Securities Company (the
“Depositor”), a Virginia corporation, has authorized
the issuance and sale of Asset Backed [Certificates][Notes], Series
20[ ]-[ ] (the
[“Certificates”][“Notes”]). The
[Certificates][Notes] are designated as (i) the Class [
] and Class [ ]
[Certificates][Notes] (the [“Underwritten
Certificates”][“Underwritten Notes”]).
[Also to be issued are the [designation of any non-offered
securities]].
Only the Underwritten
[Certificates][Notes] are being purchased by the underwriters named
in Schedule A hereto (the “Underwriters”), and the
Underwriters severally are purchasing only the Underwritten
[Certificates][Notes] set forth opposite their names in Schedule A,
except that the amounts purchased by the Underwriters may change in
accordance with Section 10 of this Agreement. [
]
is acting as representative of the several Underwriters and, in
such capacity, is hereinafter referred to as the
“Representative.” If only one underwriter is
named in Schedule A, the terms “Underwriter,”
“Underwriters” and “Representative” shall
refer to that named underwriter.
[The Underwritten Certificates will be
issued under a Pooling and Servicing Agreement, dated as of [
], [ ] (the
“Pooling and Servicing Agreement”), among the
Depositor, [ ] as master servicer), [Saxon
Mortgage Services, Inc.], as servicer, and [
]
as trustee (in such capacity, the “Trustee”).
Capitalized but undefined terms shall have the meanings set
forth in the Pooling and Servicing Agreement.]
[The Underwritten Notes will be issued
under an Indenture, dated as of [ ], [
] (the “Indenture”), between
the [ ] Trust 20[ ], as
issuer (the “Issuer”), and [
]
as indenture trustee (in such capacity, the “Indenture
Trustee”). Capitalized but undefined terms shall have
the meanings set forth in the sale and servicing agreement dated as
of [ ], [ ] (the “Sale and
Servicing Agreement”), among the Issuer, the Depositor, [
], as master servicer, [Saxon
Mortgage Services, Inc.], as servicer, and the Indenture
Trustee.]
[The Underwritten Certificates evidence
fractional undivided interests in the Trust (the
“Trust”) formed pursuant to the Pooling and Servicing
Agreement.] [The Underwritten Notes represent obligations of the
Trust (the “Trust”) formed pursuant to the Trust
Agreement, dated as of [ ], [
] (the “Trust
Agreement”), among the Depositor, [
], as owner trustee, and [
], as
administrator.]
The assets of the Trust [Fund] [Estate]
will initially include, among other things, [a] segregated pool[s]
(the “Mortgage Pool[s]”) of certain adjustable-rate and
fixed-rate, conventional, one- to four-family residential mortgage
loans (collectively, the “Mortgage Loans”). A
form of the [Pooling and Servicing Agreement][Indenture, Trust
Agreement and Sale and Servicing Agreement] [has] [have] been filed
as an exhibit to the Registration Statement (as defined
below).
The Underwritten [Certificates][Notes]
are more fully described in the Registration Statement.
Pursuant to the Sales Agreement (the
“Sales Agreement”), between [
], (in such
capacity, the “Seller”) and the Depositor, the Seller
will sell to the Depositor all of its right, title and interest in
and to the Mortgage Loans, including the scheduled principal
balances of the Mortgage Loans as of the Cut-off Date and interest
due after the Cut-off Date. Pursuant to the [Pooling][Sale]
and Servicing Agreement, the Depositor will sell to the Trust all
of its right, title and interest in and to the Mortgage Loans,
including the scheduled principal balances of the Mortgage Loans as
of the Cut-off Date and interest due after the Cut-off
Date.
SECTION 1.
Representations and Warranties of the
Depositor . The
Depositor represents and warrants to, and agrees with, the
Underwriters that as of the date hereof and as of the Closing
Date:
(a)
A Registration Statement on Form S-3 (No.
[ ]) relating to the
Underwritten [Certificates][Notes] has (i) been prepared by the
Depositor in conformity with the requirements of the Securities Act
of 1933, as amended (the “Securities Act”), and the
rules and regulations (the “Rules and Regulations”) of
the United States Securities and Exchange Commission (the
“Commission”) thereunder, (ii) been filed with the
Commission under the Securities Act and (iii) become effective and
is still effective as of the date hereof under the Securities Act.
Copies of such Registration Statement have been delivered by
the Depositor to the Underwriters. As used in this Agreement,
“Effective Time” means the date and the time as of
which such Registration Statement, or the most recent
post-effective amendment thereto, if any, was declared effective by
the Commission; “Effective Date” means the date of the
Effective Time; “Registration Statement” means such
registration statement, at the Effective Time, including any
documents incorporated by reference therein at such time;
“Base Prospectus” means the final prospectus dated [
] relating to the
Underwritten [Certificates][Notes] and “Prospectus
Supplement” means the final prospectus supplement dated [
]
relating to the Underwritten [Certificates][Notes] to be filed with
the Commission pursuant to paragraph (2), (3) or (5) of Rule 424(b)
of the Rules and Regulations; “Prospectus” means
the Base Prospectus together with the Prospectus Supplement;
[“Preliminary Prospectus” means the Base
Prospectus together with the preliminary prospectus supplement
dated [
]
relating to the Underwritten [Certificates][Notes]].
Reference made herein to the [Preliminary Prospectus or
the] Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, as of the date of the
[Preliminary Prospectus or the] Prospectus, as the case may be,
and any reference to any amendment or supplement to [the
Preliminary Prospectus or the] Prospectus shall be deemed to refer
to and include any document filed under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), after the
date of the [Preliminary Prospectus or the] Prospectus, as
applicable, and incorporated by reference in the [Preliminary
Prospectus or the] Prospectus, as applicable, and any reference to
any amendment to the Registration Statement shall be deemed to
include any report of the Depositor filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Time that is incorporated by reference in the
Registration Statement. The Commission has not issued any
order preventing or suspending the use of the Prospectus or the
effectiveness of the Registration Statement and no proceedings for
such purpose are pending or, to the Depositor’s knowledge,
threatened by the Commission. There are no contracts or
documents of the Depositor which are required to be filed as
exhibits to the Registration Statement pursuant to the Securities
Act or the Rules and Regulations which have not been so filed or
incorporated by reference therein on or prior to the Effective Date
of the Registration Statement other than such documents or
materials, if any, as any Underwriter delivers to the Depositor
pursuant to Section 5 hereof for filing on Form 8-K. The
conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(b)
The Registration Statement, [the
Preliminary Prospectus] and the Prospectus conform, and any further
amendments or supplements to the Registration Statement, [the
Preliminary Prospectus] or the Prospectus will conform, when they
become effective or are filed with the Commission, as the case may
be, in all respects to the requirements of the Securities Act and
the Rules and Regulations. The Registration Statement, as of
the Effective Date thereof and of any amendment thereto, did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading. The [Preliminary
Prospectus, as of its date and as of the date hereof, and the]
Prospectus as of its date, and as amended or supplemented as of the
Closing Date, do not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided that no
representation or warranty is made as to (i) information contained
in or omitted from the Registration Statement, [the Preliminary
Prospectus or] the Prospectus in reliance upon and in conformity
with written information furnished to the Depositor in writing by
any Underwriter through the Representative expressly for use
therein as set forth in Exhibit A (“Underwriters’
Information”), (ii) any Derived Information (as defined in
Section 5(c) below) prepared by the Underwriters contained in the
[Preliminary Prospectus or the] Prospectus and (iii) any Excluded
Information (as defined in Section 8(a)(i) below).
(c)
The documents incorporated by reference
in the [Preliminary Prospectus or the] Prospectus, as applicable,
when they became effective or were filed with the Commission, as
the case may be, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and any further documents so filed and incorporated by
reference in the [Preliminary Prospectus or] Prospectus, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder.
(d)
The Depositor has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and is in good standing
as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business so
requires such standing. The Depositor has all power and
authority necessary to own or hold its properties, to conduct the
business in which it is engaged and to enter into and perform its
obligations under this Agreement, the Sales Agreement and the
[Pooling and Servicing Agreement][Sale and Servicing Agreement and
Trust Agreement] (collectively, the “Agreements”) and
to cause the Underwritten [Certificates][Notes] to be
issued.
(e)
Except as disclosed in the [Preliminary
Prospectus or except as will be disclosed in the] Prospectus, there
are no actions, proceedings or investigations pending with respect
to which the Depositor has received service of process before or
threatened by any court, administrative agency or other tribunal to
which the Depositor is a party or of which any of its properties is
the subject (a) which, if determined adversely to the Depositor,
would have a material adverse effect on the business or financial
condition of the Depositor, (b) asserting the invalidity of any of
the Agreements or the Underwritten [Certificates][Notes], (c)
seeking to prevent the issuance of the Underwritten
[Certificates][Notes] or the consummation by the Depositor of any
of the transactions contemplated by any of the Agreements or (d)
which might materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or
enforceability of any of the Agreements or the Underwritten
[Certificates][Notes].
(f)
This Agreement has been, and the other
Agreements when executed and delivered as contemplated hereby and
thereby will have been, duly authorized, executed and delivered by
the Depositor, and this Agreement constitutes, and the other
Agreements when executed and delivered as contemplated herein, will
constitute, legal, valid and binding instruments enforceable
against the Depositor in accordance with their respective terms,
subject as to enforceability to (x) applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
affecting creditors’ rights generally, (y) general principles
of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (z) with respect to rights of
indemnity under any of the Agreements, limitations of public policy
under applicable securities laws.
(g)
The execution, delivery and performance
of the Agreements by the Depositor and the consummation of the
transactions contemplated thereby, and the issuance and delivery of
the Underwritten [Certificates][Notes] do not and will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party, by which the
Depositor is bound or to which any of the properties or assets of
the Depositor or any of its subsidiaries is subject, which breach
or violation would have a material adverse effect on the business,
operations or financial condition of the Depositor or its ability
to perform its obligations under any of the Agreements, nor will
such actions result in any violation of the provisions of the
articles of incorporation or by-laws of the Depositor or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Depositor
or any of its properties or assets, which breach or violation would
have a material adverse effect on the business, operations or
financial condition of the Depositor or its ability to perform its
obligations under any of the Agreements.
(h)
[The direction by the Depositor to the
Trustee to execute, authenticate, issue and deliver the
Underwritten Certificates has been duly authorized by the
Depositor, and, assuming the Trustee has been duly authorized to
undertake such actions, when executed, authenticated, issued and
delivered by the Trustee in accordance with the Pooling and
Servicing Agreement, the Underwritten Certificates will be validly
issued and outstanding and the holders of the Underwritten
Certificates will be entitled to the rights and benefits of the
Underwritten Certificates as provided by the Pooling and Servicing
Agreement.] [The issuance of the Notes has been duly
authorized by the Depositor and, when the Notes are executed and
authenticated in accordance with the Indenture and delivered
against payment pursuant to this Agreement, the Notes will be
validly issued and outstanding, will be entitled to the benefits
and security provided by the Indenture and will constitute the
legal, valid and binding obligations of the Issuer, enforceable in
accordance with their terms, subject, as to enforceability, to the
effect of bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance and similar laws relating to or affecting
creditors’ rights generally and court decisions with respect
thereto, and to the application of equitable principles in any
proceeding, whether at law or in equity.]
(i)
No consent, approval, authorization,
order, registration or qualification of or with any court or
governmental agency or body of the United States is required for
the issuance of the Underwritten [Certificates][Notes] and the sale
of the Underwritten [Certificates][Notes] to the Underwriters, or
the consummation by the Depositor of the other transactions
contemplated by the Agreements except such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Underwritten [Certificates][Notes]
by the Underwriters or as have been obtained.
(j)
At the time of the execution and delivery
of the [Pooling][Sale] and Servicing Agreement, the Depositor will:
(i) have equitable title to the Mortgage Loans conveyed by the
Seller, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest
(collectively, “Liens”); (ii) not have assigned or
pledged to any person (other than the [Indenture] Trustee) any of
its right, title or interest in the Mortgage Loans and (iii) have
the power and authority to [sell to the Trustee][convey to the
Issuer and pledge to the Indenture Trustee] and to sell the
Underwritten [Certificates][Notes] to the Underwriters. Upon
delivery to the Underwriters of the Underwritten
[Certificates][Notes], the Underwriters will have good title to the
Underwritten [Certificates][Notes] free of any Liens.
(k)
As of the Cut-off Date, each of the
Mortgage Loans will meet the eligibility criteria described in the
[Preliminary Prospectus and the] Prospectus and will conform to the
descriptions thereof contained in the [Preliminary Prospectus and
the ]Prospectus.
(l)
Neither the Depositor nor the Trust is an
“investment company” within the meaning of such term
under the Investment Company Act of 1940, as amended (the
“1940 Act”), and the rules and regulations of the
Commission thereunder.
(m)
At the Closing Date, the Underwritten
[Certificates][Notes] and the [Pooling and Servicing
Agreement][Sale and Servicing Agreement, Indenture and Trust
Agreement] will conform in all material respects to the
descriptions thereof contained in the [Preliminary Prospectus and
the] Prospectus.
(n)
Any taxes, fees and other governmental
charges in connection with the execution, delivery and issuance of
the Agreements and the Underwritten [Certificates][Notes] have been
paid or will be paid at or prior to the Closing Date.
(o)
Since the respective dates as of which
information is given in the [Preliminary] Prospectus, there has not
been any material adverse change in the general affairs,
management, financial condition, or results of operations of the
Depositor or Seller, otherwise than as set forth or contemplated in
the Prospectus as supplemented or amended as of the Closing
Date.
(p)
As of the Effective Date and as of the
date of the first Contract of Sale, the Depositor was not and is
not an “ineligible issuer” as defined in Rule 405 under
the Securities Act.
(q)
Any certificate signed by an officer of
the Depositor and delivered to the Representative or counsel for
the Representative in connection with an offering of the
Underwritten [Certificates][Notes] shall be deemed, and shall state
that it is, a representation and warranty as to the matters covered
thereby to each person to whom the representations and warranties
in this Section 1 are made.
SECTION 2.
Purchase and Sale
. The several commitments of the
Underwriters to purchase the Underwritten [Certificates][Notes]
pursuant to this Agreement shall be deemed to have been made on the
basis of the representations and warranties herein contained and
shall be subject to the terms and conditions herein set forth.
The Depositor agrees to cause the issuance of the
Underwritten [Certificates][Notes] and agrees to sell to each
Underwriter, and each Underwriter agrees (except as provided in
Section 10 hereof) severally and not jointly to purchase from the
Depositor, the aggregate principal amounts or percentage interests
of the Underwritten [Certificates][Notes] of each Class, as set
forth opposite such Underwriter’s name on Schedule A, at the
purchase price or prices set forth on Schedule A.
SECTION 3.
Delivery and Payment
. Delivery of and payment for the
Underwritten [Certificates][Notes] shall be made at the offices of
[
],
or at such other place as shall be agreed upon by the
Representative and the Depositor at [10:00 A.M. New York City time]
on [ ],
or at such other time or date as shall be agreed upon in writing by
the Representative and the Depositor (such date being referred to
as the “Closing Date”). Payment shall be made to
the Depositor by wire transfer of same day funds payable to the
account of the Depositor. Delivery of the Underwritten
[Certificates][Notes] shall be made to the Representative for the
accounts of the several Underwriters against payment of the
purchase price thereof. The Underwritten
[Certificates][Notes] so delivered will be initially represented by
one or more securities registered in the name of Cede & Co.,
the nominee of The Depository Trust Company (“DTC”).
The interests of the beneficial owners of the Underwritten
[Certificates][Notes] will be represented by book entries on the
records of DTC and participating members thereof. Definitive
Underwritten [Certificates][Notes] will be available only under the
limited circumstances specified in the [Pooling and Servicing
Agreement] [Indenture].
SECTION 4.
Offering by the
Underwriters . It is
understood that, subject to the terms and conditions hereof, the
several Underwriters propose to offer the Underwritten
[Certificates][Notes] for sale to the public as set forth in the
Prospectus.
SECTION 5.
Agreements .
(a)
The Depositor agrees as
follows:
(i)
To prepare the [Preliminary Prospectus
and the] Prospectus in a form approved by the Underwriters and to
file such [Preliminary Prospectus and] Prospectus pursuant to Rule
424(b) under the Securities Act not later than the
Commission’s close of business on the second Business Day
following the availability of the [Preliminary Prospectus and the ]
Prospectus, as applicable, to the Underwriters; to make no further
amendment or any supplement to the Registration Statement, the
[Preliminary Prospectus or to the] Prospectus prior to the Closing
Date except as permitted herein; to advise the Underwriters,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective prior to the termination of the offering of the
Underwritten [Certificates][Notes] or any supplement to the
[Preliminary Prospectus or the] Prospectus or any amended
[Preliminary Prospectus or] Prospectus has been filed and to
furnish the Underwriters or their counsel with copies thereof
without charge; to file promptly all reports and any definitive
proxy or information statements required to be filed by the
Depositor with the Commission pursuant to Section 13(a), 13(c), 14
or l5(d) of the Exchange Act subsequent to the date of the
Prospectus and, for so long as the delivery of a prospectus is
required in connection with the offering or sale of the
Underwritten [Certificates][Notes]; to promptly advise the
Underwriters of its receipt of notice of the issuance by the
Commission of any stop order or the institution of or, to the
knowledge of the Depositor, the threatening of any proceeding for
such purpose, or of: (i) any order preventing or suspending the use
of the [Preliminary Prospectus or] the Prospectus; (ii) the
suspension of the qualification of the Underwritten
[Certificates][Notes] for offering or sale in any jurisdiction;
(iii) the initiation of or threat of any proceeding for any such
purpose or (iv) any request by the Commission for the amending or
supplementing of the Registration Statement, the [Preliminary
Prospectus or the] Prospectus or for additional information.
In the event of the issuance of any stop order or of any
order preventing or suspending the use of the [Preliminary
Prospectus or the] Prospectus or suspending any such qualification,
the Depositor promptly shall use its best efforts to obtain the
withdrawal of such order by the Commission.
(ii)
To furnish promptly to the Underwriters
and to counsel for the Underwriters a signed copy of the
Registration Statement as originally filed with the Commission, and
of each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith.
(iii)
To deliver promptly to the Underwriters
without charge such number of the following documents as the
Underwriters shall reasonably request: (i) conformed copies of the
Registration Statement as originally filed with the Commission and
each amendment thereto (in each case including exhibits); (ii) [the
Preliminary Prospectus,] the Prospectus and any amended or
supplemented Prospectus [or Preliminary Prospectus] and (iii) any
document incorporated by reference in the [Preliminary Prospectus
or the] Prospectus (including exhibits thereto). If the
delivery of a prospectus is required at any time prior to the
expiration of nine months after the Closing Date in connection with
the offering or sale of the Underwritten [Certificates][Notes], and
if at such time any events shall have occurred as a result of which
the [Preliminary Prospectus or the] Prospectus as then amended or
supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made when such [Preliminary Prospectus or] Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the
[Preliminary Prospectus or the] Prospectus or to file under the
Exchange Act any document incorporated by reference in the
[Preliminary Prospectus or the] Prospectus in order to comply with
the Securities Act or the Exchange Act, the Depositor shall notify
the Underwriters and, upon any Underwriter’s request, shall
file or cause to be filed such document and prepare and furnish
without charge to the Underwriters and to any dealer in securities
as many copies as the Underwriters may from time to time reasonably
request of an amended [Preliminary Prospectus or] Prospectus or a
supplement to the [Preliminary Prospectus or] Prospectus which
corrects such statement or omission or effects such compliance, and
in case the Underwriters are required to deliver a Prospectus in
connection with sales of any of the Underwritten
[Certificates][Notes] at any time nine months or more after the
Effective Time, upon the request of the Underwriters but at their
expense, the Depositor shall prepare and deliver to the
Underwriters as many copies as the Underwriters may reasonably
request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Securities Act.
(iv)
To file or cause to be filed promptly
with the Commission any amendment to the Registration Statement,
[the Preliminary Prospectus] or the Prospectus or any supplement to
the Prospectus that may, in the judgment of the Depositor or the
Underwriters, be required by the Securities Act or requested by the
Commission. Neither the Underwriters’ consent to nor
their distribution of any amendment or supplement shall constitute
a waiver of any of the conditions set forth in Section
6.
(v)
To furnish the Underwriters and counsel
for the Underwriters, prior to filing with the Commission, and to
obtain the consent of the Underwriters for the filing of the
following documents relating to the Underwritten
[Certificates][Notes]: (i) any Post-Effective Amendment to the
Registration Statement or supplement to the Prospectus, or document
incorporated by reference in the Prospectus or (ii) [the
Preliminary Prospectus and] the Prospectus pursuant to Rule 424 of
the Rules and Regulations.
(vi)
To use commercially reasonable efforts,
in cooperation with the Underwriters, to qualify the Underwritten
[Certificates][Notes] for offering and sale under the applicable
securities laws of such states and other jurisdictions of the
United States or elsewhere as the Underwriters may reasonably
designate, and maintain or cause to be maintained such
qualifications in effect for as long as may be required for the
distribution of the Underwritten [Certificates][Notes]. The
Depositor will file or cause the filing of such statements and
reports as may be required by the laws of each jurisdiction in
which the Underwritten [Certificates][Notes] have been so
qualified; provided, however, that the Depositor shall not be
required to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action which would subject it
to general or unlimited service of process in any jurisdiction
where it is now so subject.
(vii)
In connection with any transaction
contemplated by this Agreement, the Depositor and each of its
affiliates maintain customary, arm’s-length business
relationships with each Underwriter and each of its affiliates, and
no fiduciary duty on the part of any Underwriter or any of its
affiliates is thereby or hereby intended or created, and the
express disc
