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EXECUTION COPY
FIELDSTONE MORTGAGE INVESTMENT CORPORATION
Mortgage-Backed Notes
UNDERWRITING AGREEMENT
July 29, 2005
To the Underwriters identified in the
related Terms Agreement
Ladies and Gentlemen:
1. Introduction.
Fieldstone Mortgage Investment Corporation, a Maryland
corporation (the "Depositor"), has
authorized the issuance and sale of
Mortgage-Backed Notes (the "Notes") and
Mortgage-Backed Certificates (the
"Certificates" and together with the Notes,
the "Securities") in one or more
series (each, a "Series"). This
Underwriting Agreement (the "Underwriting
Agreement") related to offers and sales of
Series of Notes.
Each Note will
generally be payable out of the cash flows attributable to
the property of each Trust, which will
consist of one or more pools of mortgage
loans (the "Mortgage Loans") and certain
related property to be conveyed to the
Trust by the Depositor. The Mortgage Loans
may be sold to the Depositor pursuant
to one or more Mortgage Loan Purchase
Agreements (each, an "Mortgage Loan
Purchase Agreement"), between the
Depositor, as purchaser, Fieldstone Investment
Funding, LLC (the "Transferor") and
Fieldstone Investment Corporation, as seller
(the "Seller"). The Notes of any Series
will be issued pursuant to a Trust
Agreement (the "Trust Agreement"), a
Transfer and Servicing Agreement (the
"Transfer and Servicing Agreement") and an
Indenture, among the Trust, the
Depositor, the Seller, the Master Servicer,
the Servicer, the Subservicer, the
Owner Trustee, the Indenture Trustee and
the Trust Administrator, as applicable.
Capitalized terms used herein and not
defined, shall have the meaning set forth
in the Transfer and Servicing Agreement or
the related Terms Agreement (as
defined below).
The Notes are
more fully described in the Registration Statement (as such
term is defined in Section 2(a)), which the
Depositor has furnished to the
Representative (as defined below). Each
Series of Notes and any classes or
subclasses of Notes (each, a "Class" or
"Subclass", respectively) within such
Series may vary, among other things, as to
number and types of Classes or
Subclasses, aggregate class principal
amount or class notional amount or
aggregate class principal amount, the
interest rate with respect to each Class
or Subclass, the percentage interest if
any, entitled by each Class or Subclass
to payments of principal and interest on,
or with respect to, the Notes payable
out of cash flows attributable to the
Mortgage Loans included in the related
Trust, the class principal amount and
interest rate, if any, priority of payment
among Classes or Subclasses, the method of
credit enhancement with respect to
the Notes for such Series, the Classes or
Subclasses of Notes of such Series
subject to this Agreement, and any other
variable terms contemplated by the
Operative Agreements and in the Notes of
such Series. For federal income tax
purposes, the Notes will be characterized
as debt to the extent they are
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issued to parties unrelated to the equity
owner of the Trust and are rated at
least "BBB-" or the equivalent by one or
more Rating Agencies.
Whenever the
Depositor determines to make an offering of Notes pursuant to
this Underwriting Agreement, the Depositor
will enter into an agreement (the
"Terms Agreement") providing for the sale
of such Notes to, and the purchase and
offering thereof by, an underwriter acting
for itself and as the representative
(the "Representative") for the other
underwriters, if any, identified in the
related Terms Agreement (in each case,
collectively, the "Underwriters") or
through an underwriting syndicate managed
by the Representative. The
Representative and any other underwriters
identified in the related Terms
Agreement agree to become obligated to
purchase Notes from the Depositor. Such
Terms Agreement shall specify the class
principal amount or class notional
amount of each Class or Subclass of the
Notes to be issued and their terms not
otherwise specified in the Operative
Agreements, the Classes or Subclasses of
Notes subject to this Agreement, the price
at which such Notes are to be
purchased by the Representative and each of
the Underwriters from the Depositor,
the aggregate amount of Notes to be
purchased by the Representative and each
Underwriter and any other Underwriter that
is a party to such Terms Agreement
and the initial public offering price or
the method by which the price at which
such Notes are to be sold will be
determined. The Terms Agreement, which shall
be substantially in the form of Exhibit A
hereto, which may take the form of an
exchange of any standard form of written
telecommunication between the
Representative and the Depositor. Each
offering of Notes will be governed by
this Agreement, as supplemented by the
applicable Terms Agreement, and this
Agreement and such Terms Agreement shall
inure to the benefit of and be binding
upon the Representative and the related
Underwriters. Except as otherwise
required by the context, all references
herein to a Terms Agreement, Delivery
Date, the related Operative Agreements and
Underwriters shall refer to the Terms
Agreement, Delivery Date, the related
Operative Agreements and Underwriter or
Underwriters, as the case may be, relating
to the related Series of Notes.
2.
Representations and Warranties of the Depositor. The Depositor
represents and warrants to the
Representative and to each of the Underwriters as
of the date hereof and as of the date of
the applicable Terms Agreement, as
follows:
(a) A registration statement on Form S-3 (No. 333-125910) including
a
prospectus and
such amendments thereto as may have been required on the
date hereof
relating to the Notes and the offering of each Series thereof
from time to
time in accordance with Rule 415 under the Securities Act of
1933, as amended
(the "Act"), has been filed with the Securities and
Exchange
Commission (the "Commission") and such registration statement,
as
amended, has
become effective under the Act. For purposes of this
Agreement,
"Effective Time" means the date and time as of which such
registration
statement, or the most recent post-effective amendment thereto
(if any) filed
prior to the execution and delivery of this Agreement, was
declared
effective by the Commission and "Effective Date" means the date
of
the Effective
Time. Such registration statement, as amended, and the
prospectus
relating to the sale of the Notes of the applicable Series
offered thereby
constituting a part thereof, as from time to time amended
or supplemented
(including any prospectus relating to the Notes filed with
the Commission
pursuant to Rule 424(b) of the rules and regulations of the
Commission
promulgated under the Act (the "Rules and Regulations")),
including all
documents incorporated
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therein by
reference relating to the Series of Notes to which the Terms
Agreement
relates, are respectively referred to as the "Registration
Statement" and
the "Base Prospectus"; provided, however, that a supplement
to such Base
Prospectus prepared pursuant to Section 5(a) shall be deemed
to have
supplemented the Base Prospectus only with respect to the
offering
of the Series of
Notes to which it relates (any such supplement for a
Series of Notes,
the "Prospectus Supplement" and together with the Base
Prospectus, the
"Prospectus"). Reference made herein to 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 Act as of the
date of the
Prospectus and any reference to any amendment or supplement to
the Prospectus
shall be deemed to refer to and include any document filed
under the
Securities Exchange Act of 1934 (the "Exchange Act") after the
date of the Prospectus and
incorporated by reference in the Prospectus 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 the
Representative delivers to the Depositor
pursuant to
Section 8 hereof for filing on Form 8-K. The conditions to the
use of a
registration statement on Form S-3 under the Act, as set forth
in
the General
Instructions to Form S-3, and the conditions of Rule 415 under
the Act, have
been satisfied with respect to the Registration Statement.
(b) The Registration Statement and the Prospectus conform, and
any
further
amendments or supplements to the Registration Statement or the
Prospectus will
conform, when they become effective or are filed with the
Commission, as
the case may be, in all material 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 Prospectus for a Series
of Notes
identified in the related Terms Agreement, as of its date, and
as
amended or
supplemented as of the Closing Date, does 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 the 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 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, it being understood
that such information is limited to the
information
identified in the related Terms Agreement as the "Underwriters'
Information" or
(ii) other than with respect to any Mortgage Pool Error,
any information
contained in any Collateral Term Sheet, Structural Term
Sheet or
Computational Materials (each as defined in Sections 8
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and 9 below).
The Prospectus delivered to the Underwriters for use in
connection with the offering of
the related Series of Notes was identical
to the
electronically transmitted copies thereof filed with the
Commission
pursuant to its
Electronic Data Gathering, Analysis and Retrieval system,
except to the
extent permitted by Regulation S-T.
(c) The documents incorporated by reference in the Prospectus,
when
they were filed
with the Commission, conformed in all material respects to
the requirements
of the 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 Prospectus, when
such documents
are filed with the Commission, will conform in all material
respects to the
requirements of the Act or the Exchange Act, as applicable,
and the rules
and regulations of the Commission thereunder.
(d) The Depositor has been duly organized and is validly existing
as a
corporation in
good standing under the laws of the State of Maryland, with
full corporate
power and authority to own its assets and conduct its
business as
described in the Prospectus, is duly qualified as a foreign
corporation in
good standing in all jurisdictions in which the ownership or
lease of its
property or the conduct of its business requires such
qualification,
except where the failure to be so qualified would not have a
material adverse
effect on the Depositor, and is conducting its business so
as to comply in
all material respects with the applicable statutes,
ordinances,
rules and regulations of the jurisdictions in which it is
conducting
business.
(e) There are no actions, proceedings or investigations pending
with
respect to which
the Depositor has received service of process or, to the
knowledge of the
Depositor, threatened by or before any court,
administrative
agency or other tribunal to which the Depositor is a party
or of which any
of its properties is the subject (i) which if determined
adversely to the
Depositor would have a material adverse effect on the
business or
financial condition of the Depositor, (ii) asserting the
invalidity of
any of the Operative Agreements or the related Series of
Notes, (iii)
seeking to prevent the issuance of the related Series of Notes
or the
consummation by the Depositor of any of the transactions
contemplated by
any of the Operative Agreements or (iv) which might
materially and
adversely affect the performance by the Depositor of its
obligations
under, or the validity or enforceability of, any of the
Operative
Agreements or the related Series of Notes.
(f) The related Operative Agreements and the related Notes conform,
or
will conform as
of the related Delivery Date, to the description thereof
contained in the
Registration Statement and the related Prospectus; and the
Notes of a
Series, on the Delivery Date set forth in the related Terms
Agreement, will
have been duly and validly authorized and, when such Notes
are duly and
validly executed by the Trust, authenticated by the Indenture
Trustee or the
Trust Administrator and delivered in accordance with such
Operative
Agreements and delivered and paid for as provided herein, will
be
validly issued
and outstanding and entitled to the benefits afforded by the
related
Operative Agreements.
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(g) The execution and delivery by the Depositor of this Agreement
and
the other
related Operative Agreements to which it is a party are within
the corporate
power of the Depositor and have been, or will have been on
the related
Delivery Date, duly authorized by all necessary corporate
action on the
part of the Depositor; and neither the execution and delivery
by the Depositor
of such instruments, nor the consummation by the Depositor
of the
transactions herein or therein contemplated, nor the compliance
by
the Depositor
with the provisions hereof or thereof, will (i) conflict with
or result in a
breach of, or constitute a default under, any of the
provisions of
the certificate of incorporation or by-laws of the Depositor,
(ii) conflict
with any of the provisions of any law, governmental rule,
regulation,
judgment, decree or order binding on the Depositor or its
properties,
(iii) conflict with any of the provisions of any indenture,
mortgage,
contract or other instrument to which the Depositor is a party
or
by which it is
bound, or (iv) result in the creation or imposition of any
lien, charge or
encumbrance upon any of its property pursuant to the terms
of any such
indenture, mortgage, contract or other instrument.
(h) At the date thereof, each Agreement to which the Depositor is
a
party will
constitute a legal, valid and binding obligation of the
Depositor,
enforceable against the Depositor in accordance with its terms,
subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization,
insolvency, moratorium and other similar laws affecting
creditors'
rights generally from time to time in effect, and to general
principles of
equity.
(i) All approvals, authorizations, consents, orders or other
actions
of any person,
corporation or other organization, or of any court,
governmental
agency or body or official (except with respect to the state
securities or
Blue Sky laws of various jurisdictions), required in
connection with
the valid and proper authorization, issuance and sale of
the Notes of the
related Series pursuant to this Agreement and the other
related
Operative Agreements has been or will be taken or obtained on
or
prior to the
applicable Delivery Date.
(j) At the applicable Delivery Date, each of the Mortgage Loans
included in the
Trust will conform to the representations and warranties
with respect
thereto set forth in the related Mortgage Loan Purchase
Agreement and
the Depositor will (i) have equitable title to the interest
in the Mortgage
Loans, free and clear of any lien, mortgage, pledge,
charge,
encumbrance, adverse claim or other security interest
(collectively,
"Liens"), (ii) not have assigned to any person (other than
the Trust) any
of its right, title or interest in the Mortgage Loans, and
(iii) have the
power and authority to sell its interest in the Mortgage
Loans to the
Trust and to sell the related Series of Notes to the
Underwriters.
Upon execution and delivery of the related Transfer and
Servicing
Agreement by the Owner Trustee, the Owner Trustee will have
acquired
beneficial ownership of all of the Depositor's title and
interest
in and to the
Mortgage Loans, which will in turn be pledged to the
Indenture
Trustee in accordance with the terms of the Indenture.
(k) If so specified in the Prospectus, certain of the Notes subject
to
this Agreement
and offered by means of the Registration Statement may, when
issued
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pursuant to the
Indenture, be "mortgage related securities", as such term
is defined in
Section 3(a)(41) of the Exchange Act.
(l) Neither the Depositor nor the Trust will be subject to
registration as
an investment company under the Investment Company Act of
1940, as amended
(the "Investment Company Act").
(m) Since the respective dates as of which information provided by
the
Seller or the
Depositor 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 Depositor or any Seller,
otherwise than
as set forth or contemplated in the Prospectus as
supplemented or
amended as of the Closing Date.
(n) 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 Notes shall be deemed, and shall state
that it is, a
representation and warranty of the Depositor as to the
matters covered
thereby on the date of such certificate to each person to
whom the
representations and warranties in this Section 2 are made.
(o) As of the date of delivery, there are no Mortgage Pool Errors
in
any of the
information provided to the Underwriters regarding the Mortgage
Loans and such
information is true and correct in all material respects or,
if there is any
material error in any such information, the Depositor has
promptly
provided corrected information to the Underwriters.
(p) On the Closing Date, the Mortgage Loans will conform in all
material
respects to the description thereof contained in the Prospectus
and the
representations and warranties contained in this Agreement will
be
true and correct
in all material respects. The representations and
warranties of the
Seller and the Depositor set out in the Transfer and
Servicing
Agreement are hereby made to the Underwriters as though set out
herein, and at
the dates specified therein, such representations and
warranties were
or will be true and correct in all material respects.
(q) Each of the Seller and the Depositor possess all material
licenses,
certificates, permits or other authorizations issued by the
appropriate
state, federal or foreign regulatory agencies or bodies
necessary to
conduct the business now operated by it and as described in
the Prospectus
and there are no proceedings pending or, to the best
knowledge of the
Depositor, threatened, relating to the revocation or
modification of
any such license, certificate, permit or other
authorization
which singly or in the aggregate, if the subject of an
unfavorable
decision, ruling or finding, would materially and adversely
affect the
business, operations, results of operations, financial
position,
income, property
or assets of either the Seller or the Depositor.
(r) The Depositor is not aware of (i) any request by the
Commission
for any further
amendment of the Registration Statement or the Prospectus
or for any additional
information, (ii) the issuance by the Commission of
any stop order
suspending the effectiveness of the Registration Statement
or the
institution or threatening of any
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proceeding for
that purpose, or (iii) any notification with respect to the
suspension of
the qualification of the related Series of Notes for sale in
any jurisdiction
or the initiation or threatening of any proceeding for
such
purpose.
3. Purchase,
Sale and Delivery of Notes. Delivery of and payment for each
Series of Notes to which this Agreement
applies will be made at such time and
location as is specified in the related
Terms Agreement, or as the
Representative and the Depositor shall
agree upon, each such time being herein
referred to as a "Delivery Date." Delivery
of such Notes shall be made by the
Depositor to the Underwriters against
payment of the purchase price specified in
the applicable Terms Agreement in same day
funds wired to such bank as may be
designated by the Depositor, or by such
other manner of payment as may be agreed
upon by the Depositor and the
Representative. Except as otherwise provided in
the related Terms Agreement, each Class of
Notes of a Series sold to the
Underwriters pursuant to such Terms
Agreement will be represented initially by
one or more notes registered in the name of
Cede & Co., the nominee of the
Depository Trust Company (the "DTC Notes").
The interests of the beneficial
owners of the DTC Notes will be represented
by book entries on the records of
DTC and participating members thereof.
Definitive certificates for the DTC Notes
will be made available only under the
limited circumstances specified in the
Indenture. Except as otherwise provided in
the related Terms Agreement, each
Class of Notes of a Series sold to the
Underwriters as definitive notes pursuant
to such Terms Agreement will be in
definitive, fully registered form, in such
denominations and registered in such names
as the Representative shall request,
and will be made available at least 24
hours prior to the applicable Closing
Date, for checking and packaging at the
offices of Hunton & Williams LLP,
Riverfront Plaza, East Tower, 951 E. Byrd
Street, Richmond, Virginia 23219 in
such amounts as determined pursuant to the
Terms Agreement.
The Depositor
and the Underwriters have agreed that the Delivery Date will
be the date as set forth in the related
Terms Agreement.
4. Offering by
Underwriters. It is understood that the Underwriters propose
to offer the Notes subject to this
Agreement for sale to the public as set forth
in the Prospectus.
5. Covenants of
the Depositor. The Depositor covenants and agrees with the
Underwriters participating in the offering
of the applicable Series of Notes
that:
(a) Immediately following the execution of the related Terms
Agreement, the
Depositor will prepare a Prospectus Supplement setting forth
the amount of
Notes of the related Series covered thereby and the terms
thereof not
otherwise specified in the Base Prospectus, the price at which
such Notes are
to be purchased by the Underwriters, from the Depositor,
either the
initial public offering price or the method by which the price
at which such
Notes are to be sold will be determined, the selling
concessions and
reallowances, if any, and such other information as the
Representative
and the Depositor deem appropriate in connection with the
offering of such
Notes, but the Depositor will not file, for so long as the
delivery of a
Prospectus is required in connection with the offering or
sale of such
Notes, any amendments to the Registration Statement as in
effect with
respect to such Notes, or any amendments or supplements to the
related
Prospectus, unless it shall first have delivered copies of such
amendments or
supplements to the Representative, or if the Representative
shall have
reasonably objected thereto promptly
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after receipt
thereof, the Depositor will, during such period, immediately
advise the
Representative or its counsel (i) when notice is received from
the Commission
that any post-effective amendment to the Registration
Statement has become or will
become effective and (ii) of any order or
communications
suspending or preventing, or threatening to suspend or
prevent, the
offer and sale of the Notes or of any proceedings or
examinations
that may lead to such an order or communication, whether by or
of the
Commission or any authority administering any state securities
or
Blue Sky law, as
soon as the Depositor is advised thereof, and will use its
best efforts to
prevent the issuance of any such order or communication and
to obtain as
soon as possible its lifting, if issued. The Depositor will
use its best
efforts to prevent the issuance of any stop order suspending
the
effectiveness of the Registration Statement and, if issued, to
obtain
as soon as
possible the withdrawal thereof. The Depositor will file such
Prospectus
pursuant to Rule 424 under the Act not later than the
Commission's
close of business on the second Business Day following the
availability of
the Prospectus to the Underwriters.
(b) If, at any time when a Prospectus relating to the Notes of
the
related Series
is required to be delivered under the Act, any event occurs
as a result of
which the Prospectus as then amended or supplemented would
include any
untrue statement of a material fact or omit to state a material
fact necessary
in order to make the statements therein, in the light of the
circumstances
under which they were made, not misleading, or if it is
necessary at any time to amend or
supplement the Prospectus to comply with
the Act or the
Rules and Regulations, the Depositor will promptly prepare
and file with
the Commission, an amendment or supplement that will correct
such statement
or omission or an amendment that will effect such
compliance;
provided, however, that the Depositor will not be required to
file any such
amendment or supplement with respect to any Computational
Materials,
Structural Term Sheets (each as defined in Section 8 below) or
Collateral Term
Sheets (as defined in Section 9 below) incorporated by
reference in the
Prospectus other than any amendments or supplements of
such
Computational Materials or Structural Term Sheets that are
furnished
to the Depositor
by the Underwriters pursuant to Section 8(a) hereof or any
amendments or
supplements of such Collateral Term Sheets that are furnished
to the Depositor
by the Underwriters pursuant to Section 9(a) hereof which
are required to
be filed in accordance therewith.
(c) The Depositor will cause any Computational Materials and
any
Structural Term
Sheets with respect to the Notes of a Series that are
delivered by the
Representative to the Depositor pursuant to Section 8 to
be filed with
the Commission on a Current Report on Form 8-K (a "Current
Report")
pursuant to Rule 13a-11 under the Exchange Act in accordance
with
Section 10 prior
to the time of filing of the Prospectus as provided in
Section 5(a) hereof
and will include therein all such materials so
furnished. The
Depositor will cause any Collateral Term Sheet with respect
to the offered
Notes of a Series that is delivered by the Representative to
the Depositor in
accordance with the provisions of Section 9 to be filed
with the
Commission on a Current Report pursuant to Rule 13a-11 under
the
Exchange Act in
accordance with Section 10 within two Business Days of
delivery of any
such Collateral Term Sheet to any prospective investor in
the related
Series of Notes and will include therein all such materials so
furnished. In
addition, if at any time prior to the availability of the
related
Prospectus, the Representative has delivered to any prospective
investor a
subsequent Collateral Term
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Sheet that
reflects, in the reasonable judgment of the Representative and
the Depositor, a
material change in the characteristics of the Mortgage
Loans for the
related Series from those on which a Collateral Term Sheet
with respect to
the related Series previously filed with the Commission was
based, the
Depositor will cause any such Collateral Term Sheet that is
delivered by the
Representative to the Depositor in accordance with the
provisions of
Section 9 hereof to be filed with the Commission on a Current
Report in
accordance with Section 10. Each such Current Report shall be
incorporated by
reference in the related Prospectus and the related
Registration
Statement. Each Underwriter that prepares and delivers to any
prospective
investor in a Series of Notes any Computational Materials,
Structural Term
Sheets or Collateral Term Sheets hereby agrees to deliver
those
Computational Materials, Structural Term Sheets or Collateral
Term
Sheets to the
Representative prior to the required delivery date by the
Representative
to the Depositor set forth in Sections 8 and 9 hereof.
(d)
The Depositor will cause the Trust Administrator to furnish or
make available,
within a reasonable time after the end of each calendar
year, to each
holder of a Note (each, a "Noteholder") at any time during
such year, such
information as is necessary or desirable to assist
Noteholders in
preparing their federal income tax returns.
(e) The Depositor will furnish to the Representative copies of
the
Registration
Statement (two of which will be signed and will include all
documents and
exhibits thereto or incorporated by reference therein), each
related
preliminary prospectus, the Prospectus and all amendments and
supplements to
such documents relating to the Notes of the related Series,
in each case as
soon as available, and in such quantities as the
Representative
reasonably requests.
(f) The Depositor will arrange for, and will pay all expenses
(including
reasonable fees and expenses of counsel) in connection with the
qualification of
the Notes of the related Series for sale and the
determination of
their eligibility for investment under the laws of such
jurisdictions as
the Representative designates and will continue such
qualifications
in effect so long as required for the distribution of the
Notes; provided,
however, that neither the Depositor nor the Trust shall be
required to do
business in any jurisdiction where it is now not qualified
or to take any
action which would subject it to general or unlimited
service of
process in any jurisdiction in which it is now not subject to
service of
process.
(g) The Depositor will, while the Notes of a Series are
outstanding
furnish to the
Representative, and upon request of each other Underwriter,
information with
respect to the related Trust or the Mortgage Loans
included in the
related mortgage pool, as the Representative or any such
Underwriter may
reasonably request, including but not limited to
information
necessary or appropriate to the maintenance of a secondary
market in the
Notes of such Series.
(h) The Depositor, whether or not the transactions contemplated
under
the related
Terms Agreement are consummated or the related Terms Agreement
is terminated,
will pay all expenses incident to the performance of its
obligations
under this Agreement and the Terms Agreement and will reimburse
the Underwriters
for any
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expenses (including
fees and disbursements of its counsel) incurred by them
in connection
with (i) the offering and the qualification of the related
Series of Notes,
(ii) the preparation of all documents described herein,
(iii) reasonable
fees and expenses of the Servicer, Subservicer, Owner
Trustee,
Indenture Trustee and Trust Administrator, (iv) the
investigation
by the
Underwriters of the Seller, the Depositor and the Mortgage
Loans,
(v) the
determination of their eligibility for investment under the laws
of
such
jurisdictions as the Representative may designate and the
reproduction
of memoranda
relating thereto, (vi) any fees charged by investment rating
agencies for the
rating of the Notes and (vii) reasonable and customary
expenses
incurred in distributing any preliminary prospectuses, the
Prospectus or
any amendments or supplements thereto to the Underwriters;
provided
however, that the Depositor shall not be liable for the payment
of
any of the foregoing amounts to
the extent that the failure to consummate
the transactions
described herein resulted from any act or omission of the
Underwriters
pursuant to the terms of this Agreement.
(i) During the period when a Prospectus is required by law to
be
delivered in
connection with the sale of Notes of a related Series pursuant
to this
Agreement, the Depositor will file, or cause the Trust
Administrator to
file on behalf of the related Trust, on a timely and
complete basis,
all documents that are required by the related Trust with
the Commission
pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(j) The Depositor will prepare, or cause to be prepared, and file,
or
cause to be
filed such tax returns and take such actions, all on a timely
basis, as is
required to maintain the Notes as debt status for tax
purposes.
6. Conditions to
the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for
the Notes of a related Series subject
to this Agreement will be subject to the
accuracy of the representations and
warranties on the part of the Depositor as
of the date hereof, the date of the
Terms Agreement and the applicable Delivery
Date, to the accuracy of the
statements of the Depositor made pursuant
to the provisions thereof, to the
performance by the Depositor in all
material respects of its obligations
hereunder and to the following additional
conditions precedent:
(a) Each of the obligations of the Depositor required to be
performed
by it on or
prior to the Closing Date pursuant to the terms of the relevant
Operative
Agreements shall have been duly performed and complied with and
all of the
representations and warranties of the Depositor under any of
the
Operative
Agreements shall be true and correct as of the Closing Date or
as
of another date
specified therein and no event shall have occurred which,
with notice or
the passage of time, would constitute a default under any of
such Operative
Agreements, and the Underwriters shall have received
certificates to
the effect of the foregoing, each signed by an authorized
officer of the
Depositor.
(b) The Representative shall have received letters dated the date
of
the Terms
Agreement, in form and substance reasonably acceptable to the
Representative
and its counsel, prepared by independent certified public
accountants, (i)
regarding the numerical and statistical information
contained in the
Prospectus, other than the numerical and
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<PAGE>
statistical
information referred to in Section 6(d) hereof, and (ii)
relating to
certain agreed upon procedures as specified by the
Underwriters.
(c) The Representative shall have received letters dated the date
of
the Terms
Agreement, in form and substance reasonably acceptable to the
Representative
and its counsel, prepared by independent certified public
accountants,
regarding the numerical and statistical information contained
in the
Computational Materials, Structural Term Sheets and Collateral
Terms
Sheets.
(d) The Representative shall have received letters dated the date
of
the Terms
Agreement, in form and substance acceptable to the
Representative
and its counsel,
prepared by independent certified public accountants of
the Servicers,
regarding the numerical and statistical information
contained in the
Prospectus regarding the Servicers' respective servicing
portfolios.
(e) The Representative and each Underwriter shall have received
the
requested number
of copies of the Prospectus for the related Series of
Notes.
(f) All actions required to be taken and all filings required to
be
made by the
Depositor under the Act prior to the sale of the Notes of the
applicable
Series shall have been duly taken or made; and prior to the
applicable
Delivery Date, the Representative shall have received
confirmation of
the effectiveness of the Registration Statement and no stop
order suspending
the effectiveness of the Registration Statement shall have
been issued and
no proceedings for that purpose shall have been instituted,
or to the
knowledge of the Depositor or any Underwriter, shall be
contemplated by
the Commission.
(g) The Notes subject to this Agreement and offered by means of
the
Registration
Statement shall be rated by the applicable rating agencies at
the time of
issuance as set forth in the Terms Agreement.
(h) (1) The Representative shall have received an opinion of
counsel
or counsels for
the Depositor, dated the applicable Delivery Date,
substantially to
the effect that:
(i) The Depositor has been duly incorporated and is validly
existing as a corporation and is in good standing under the laws
of
the state of Maryland. The Depositor has the corporate power
and
authority to own its assets and to conduct its business as
described
in the Prospectus and to enter into and perform its obligations
under
the Operative Agreements to which it is a party;
(ii) Each of the Trust Agreement, Mortgage Loan Purchase
Agreement and the Transfer and Servicing Agreement has been
duly
authorized, executed and delivered by the Depositor and each
constitutes a valid and binding agreement of the Depositor,
enforceable against the Depositor in accordance with its terms;
(iii) When duly authorized by the Issuer and duly and validly
executed and delivered by the Owner Trustee, on behalf of the
Issuer,
and authenticated by the Indenture Trustee in accordance with
the
terms of the Indenture, delivered
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<PAGE>
against payment of the purchase price therefor pursuant to this
Underwriting Agreement, the Notes will be entitled to the benefits
of
the Indenture and will constitute valid and binding obligations of
the
Issuer, enforceable against the Issuer in accordance with their
terms;
(iv) Each of the Operative Agreements to which it is a party
has
been duly authorized, executed and delivered by the Depositor;
(v) The execution and delivery by the Depositor of each of the
Underwriting Agreement, the related Terms Agreement, the Trust
Agreement, the Mortgage Loan Purchase Agreement and the Transfer
and
Servicing Agreement and the performance by the Depositor of its
obligations thereunder each in accordance with its terms, do
not
conflict with the certificate of incorporation or by-laws of
the
Depositor;
(vi) At the date hereof, the Issuer is not required to be
registered under the Investment Company Act of 1940, as
amended;
(vii) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), and complies with
the
requirements of the TIA and the applicable Rules and
Regulations;
(viii) The Indenture creates a valid security interest in favor
of the Indenture Trustee, for the benefit of the holders of the
Notes,
in the Issuer's right, title and interest in and to the
Collateral
securing the obligations of the Issuer under the Indenture in which
a
security interest may be created pursuant to the UCC;
(ix) The Registration Statement has been declared effective
under
the 1933 Act; the Base Prospectus and the Prospectus Supplement
have
each been filed pursuant to Rule 424(b) of the rules and
regulations
of the Commission under the 1933 Act in the manner and within the
time
period required by Rule 424(b); and, to the best of our knowledge,
no
stop order suspending the effectiveness of the Registration
Statement
has been issued under the 1933 Act and no proceedings for that
purpose
have been instituted or are pending or threatened by the
Commission;
(x) The Registration Statement and the Prospectus (in each case
other than (A) the financial statements, schedules, tables and
other
financial and statistical data included or incorporated by
reference
therein or omitted therefrom and (B) any documents incorporated
by
reference, as to which such counsel need not express an opinion),
as
of their respective effective or issue dates, as the case may be,
each
appeared on its face to be appropriately responsive in all
material
respects to the
applicable requirements of the 1933 Act and the rules
and regulations of the Commission under the 1933 Act;
(xi) In the event that the related Prospectus Supplement
discloses that any class of Notes constitute "mortgage-related
securities" within the meaning of
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<PAGE>
Section 3(a)(41) of the Securities Exchange Act of 1934, as
amended,
that such class so qualifies assuming that it is rated by a
nationally
recognized statistical rating organization in one of its two
highest
rating categories, for so long as it is so rated;
(xii) The information in the Prospectus under th
