EXHIBIT 1.1
$[ ]
AEGIS ASSET BACKED SECURITIES TRUST 200[ ]-[ ]
Mortgage Loan Asset Backed Certificates
Series 200[ ]-[ ]
UNDERWRITING AGREEMENT
[Date]
[Underwriter]
as Representative of the Underwriters
named in Schedule A
[c/o Underwriter/Address]
Ladies and Gentlemen:
Aegis Asset Backed Securities Corporation (the "Depositor"), a Delaware
corporation, has authorized the issuance and sale of Aegis Mortgage Loan Asset
Backed Certificates, Series 200[ ]-[ ], consisting of (i) the Class A-[ ] and
Class A-[ ] (collectively, the "Class A Certificates"), (ii) the Class M-[ ] and
Class M-[ ] Certificates (collectively, the "Mezzanine Certificates") and (iii)
the Class B Certificates (the "Class B Certificates" and together with the
Mezzanine Certificates, the "Subordinate Certificates"). Also issued are the
Class R Certificates (the "Non-Offered Certificates"). The Class A Certificates,
the Subordinate Certificates and the Non-Offered Certificates are collectively
referred to as the "Certificates."
Only the Class A Certificates and the Subordinate Certificates (the
"Offered Certificates") are being purchased by the Underwriters named in
Schedule A hereto (collectively, the "Underwriters"), and each Underwriter is
purchasing, severally, only the Offered Certificates set forth opposite its name
in Schedule A, except that the amounts purchased by the Underwriters may change
in accordance with Section 10 of this Agreement. [Underwriter] is acting as
representative of the Underwriters and in such capacity is hereinafter referred
to as the "Representative."
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement"), to be dated as of [ ] 1, 200[ ] among
the Depositor, [Master Servicer], as the master servicer (the "Master
Servicer"), [Servicer], as the servicer (the "Servicer"), Aegis Mortgage
Corporation, as seller (the "Seller") and [Trustee], as the trustee (in such
capacity, the "Trustee"). Capitalized but undefined terms shall have the
meanings set forth in the Pooling and Servicing Agreement.
The Certificates will evidence fractional undivided interests in the
trust (the "Trust") formed pursuant to the Pooling and Servicing Agreement. The
assets of the Trust will initially include, among other things, a pool of
mortgage loans, having a Cut-Off Date as of [ ] 1, 200[ ] (the "Mortgage
Loans"), [any amounts on deposit in the Pre-Funding Account] and any amounts as
may be held by the Trustee in any accounts held by the Trustee for the Trust.
The Mortgage Loans are secured primarily by first and [junior] deeds of trust or
mortgages on [one- to four-family residential properties]. A form of the Pooling
and Servicing Agreement has been filed as an exhibit to the Registration
Statement (as defined below). The Certificates are more fully described in the
Registration Statement.
Pursuant to the Pooling and Servicing Agreement, the Seller will
transfer to the Depositor and the Depositor will transfer to the Trust all of
its right, title and interest in and to the unpaid principal balances of the
Mortgage Loans as of the Cut-Off Date and interest due on and after the Cut-Off
Date and the collateral securing each Mortgage Loan.
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. [ ]) 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; "Basic Prospectus" means such final prospectus
dated [ ] [ ], 200[ ]; and "Prospectus Supplement" means the final prospectus
supplement relating to the Offered Certificates, to be filed with the Commission
pursuant to paragraphs (2), (3) or (5) of Rule 424(b) of the Rules and
Regulations. "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. 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 Securities 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
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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 8(f) 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 with
respect to the Depositor and the Registration Statement. To the extent that any
Underwriter has provided to the Depositor Computational Materials that such
Underwriter has provided to a prospective investor, the Depositor will file or
cause to be filed with the Commission a report on Form 8-K containing such
Computational Materials, as soon as reasonably practicable after the date of
this Agreement, but in any event, not later than 11:00 a.m. New York time on the
date on which the Prospectus is made available to the Underwriter and is filed
with the Commission pursuant to Rule 424(b)(5) of the Rules and Regulations.
(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 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 set forth in the [last] paragraph of the cover page and in the
[fourth and seventh] paragraphs under the caption "Underwriting" in the
Prospectus Supplement (the "Underwriters' Information") or (ii) other than with
respect to any Pool Information, any information contained in any Collateral
Term Sheet, Structural Term Sheet, Series Term Sheet or Computational Materials
(each as defined in Section 5(b) below) in each case to the extent not included
in the Prospectus other than by incorporation by reference.
(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 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 Prospectus, when such documents are
filed with the Commission, 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 formed and is validly existing as a
corporation in good standing under the laws of the State of Delaware 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
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perform its obligations under this Agreement and the Pooling and Servicing
Agreement (the "Agreements") and to cause the Certificates to be issued.
(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 Agreements or the
Certificates, (iii) seeking to prevent the issuance of the Certificates or the
consummation by the Depositor of any of the transactions contemplated by any of
the 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 Agreements or the Certificates.
(f) This Agreement has been, and the Pooling and Servicing Agreement
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 Pooling and Servicing Agreement when executed and delivered
as contemplated herein and therein 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 this Agreement, 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 hereby and
thereby, and the issuance and delivery of the Certificates, 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 conflict,
breach, violation or default 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 certificate of incorporation or
the bylaws 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 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 Certificates has been or will have 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
Certificates will be validly issued and outstanding and the holders of the
Certificates will be entitled to the rights and benefits of the Certificates as
provided by the Pooling and Servicing Agreement.
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(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 Certificates and the sale of the
Offered Certificates 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 Offered Certificates by the Underwriters or as have been
obtained.
(j) At the time of execution and delivery of the Pooling and Servicing
Agreement, the Depositor will: (i) have equitable title to the interest in 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 to any person (other than the
Trustee) 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
Trustee and to sell the Offered Certificates to the Underwriters. Upon execution
and delivery of the Pooling and Servicing Agreement by the Trustee, the Trustee
will have acquired beneficial ownership of all of the Depositor's title and
interest in and to the Mortgage Loans. Upon delivery to the Underwriters of the
Offered Certificates, the Underwriters will have good title to the Offered
Certificates free of any Liens.
(k) As of the Cut-Off Date, each of the Mortgage Loans will meet the
eligibility criteria described in the Prospectus and will conform in all
material respects to the descriptions thereof contained in 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 and the
Rules and Regulations of the Commission thereunder.
(m) At the Closing Date, the Offered Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the descriptions
thereof contained in the Prospectus.
(n) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of the Agreements and the Certificates 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
Prospectus, there has not been any material adverse change in the general
affairs, management, financial condition, or results of operations of the
Depositor or the Seller, otherwise than as set forth or contemplated in the
Prospectus as supplemented or amended as of the Closing Date.
(p) 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 Offered Certificates 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 1 are made.
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(q) As of the date of delivery, any Pool Information provided to the
Underwriters is true and correct in all material respects or, if there is any
material error in any Pool Information, the Depositor has promptly provided
corrected information to the Underwriters.
SECTION 2. Purchase and Sale. The commitment of the Underwriters to
purchase the Offered Certificates 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 instruct the Trustee to issue the Certificates and agrees to
sell to the Underwriters, and the Underwriters agree (except as provided in
Sections 10 and 11 hereof) severally and not jointly to purchase from the
Depositor, the aggregate initial principal amounts or percentage interests of
the Offered Certificates of each Class, as set forth opposite their names on
Schedule A, at the purchase price or prices (plus accrued interest, as
appropriate) as set forth on Schedule A.
SECTION 3. Delivery and Payment. Delivery of and payment for the
Offered Certificates 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 [ ] [ ], 200[ ] 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 Offered Certificates shall be made to the Representative for the
accounts of the Underwriters against payment of the purchase price thereof. The
Offered Certificates so delivered will be initially represented by one or more
certificates registered in the name of Cede & Co., the nominee of The Depository
Trust Company ("DTC"). The interests of the beneficial owners of the Offered
Certificates will be represented by book entries on the records of DTC and
participating members thereof. Definitive Certificates will be available only
under the limited circumstances specified in the Pooling and Servicing
Agreement. The Offered Certificates will be made available for examination by
the Underwriters no later than 2:00 p.m. New York City time on the Business Day
immediately prior to the Closing Date.
SECTION 4. Offering by the Underwriters. It is understood that, subject
to the terms and conditions hereof, the Underwriters propose to offer the
Offered Certificates for sale to the public as set forth in the Prospectus.
SECTION 5. Agreements. (a) The Depositor agrees as follows:
(i) To prepare the Prospectus in a form approved by the
Underwriters and to file such 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 Prospectus to
the Underwriters; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the Closing Date
except as permitted herein; prior to the termination of the offering of
the Offered Certificates, 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 or any
supplement to the Prospectus or any amended 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
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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 by law in
connection with the offering or sale of the Offered Certificates
contemplated by the Prospectus Supplement; and for so long as delivery
of a prospectus is required by law, to promptly advise the Underwriters
of its receipt of notice of the issuance by the Commission of any "Stop
Order" suspending the effectiveness of the Registration Statement 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 Prospectus; (ii) the suspension
of the qualification of the Offered Certificates for offering or sale
in any jurisdiction; (iii) the initiation of or, to the knowledge of
the Depositor, threat of any proceeding for any such purpose; or (iv)
any request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information.
In the event of the issuance of any "Stop Order" suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of the Prospectus or suspending any such
qualification, the Depositor promptly shall use its reasonable 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
(and in the case of clauses (ii) and (iii) below, for so long as
delivery of a prospectus is required by law in connection with the
offering or sale of the Offered Certificates contemplated by the
Prospectus Supplement) 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
Prospectus and any amended or supplemented Prospectus; and (iii) any
document incorporated by reference in the Prospectus (including
exhibits thereto). If the delivery of a prospectus is required by law
at any time prior to the expiration of nine months after the Closing
Date in connection with the offering or sale of the Offered
Certificates contemplated by the Prospectus Supplement, and if at such
time any events shall have occurred 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 any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in 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 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 Prospectus or a supplement to the Prospectus which corrects
such statement or omission or effects such compliance, and in case the
Underwriters are required by law to deliver a Prospectus in connection
with sales of any of the Offered
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Certificates at any time nine months or more after the Closing Date,
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) For so long as delivery of a prospectus is required by
law in connection with the offering or sale of the Offered Certificates
contemplated by the Prospectus Supplement, to file promptly with the
Commission any amendment to the Registration Statement or the
Prospectus or any supplement to the Prospectus that may, in the
reasonable 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 Certificates: (i) any post-effective amendment to the
Registration Statement or supplement to the Prospectus, or document
incorporated by reference in the Prospectus other than any periodic
reports required to be filed after the Closing Date, or (ii) any
Prospectus pursuant to Rule 424 of the Rules and Regulations.
(vi) To use reasonable commercial efforts, in cooperation with
the Underwriters, to qualify the Offered Certificates 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
designate, and maintain or cause to be maintained such qualifications
in effect for as long as may be required for the distribution of the
Offered Certificates. 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 Offered Certificates 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) Not to permit, unless the Underwriters shall otherwise
have given their written consent, any collateralized mortgage
obligations or other similar securities to be publicly offered or sold
in an offering registered under the Securities Act, representing
interests in or secured by other mortgage-related assets originated or
owned by the Seller, nor to permit the Seller to enter into any
contractual arrangements that contemplate the registered public
offering or sale of such securities, until the earlier to occur of the
termination of the syndicate or the Closing Date.
(viii) To cause, so long as the Offered Certificates shall be
outstanding, the Trustee, pursuant to the Pooling and Servicing
Agreement, to deliver to the Underwriters as soon as such statements
are furnished to the Trustee: (i) the annual statement as to compliance
delivered to the Trustee pursuant to Section 3.16 of the Pooling and
Servicing Agreement; (ii) the annual statement of a firm of independent
public accountants furnished to the Trustee pursuant to Section 3.17 of
the Pooling and Servicing
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Agreement; (iii) the monthly servicing report furnished to the
Depositor and the Trustee pursuant to Section 4.4 of the Pooling and
Servicing Agreement; and (iv) the monthly reports furnished to the
Certificateholders pursuant to Section 4.5 of the Pooling and Servicing
Agreement.
(b) Each Underwriter represents, warrants, covenants and agrees with
the Depositor that:
(i) It either (A) has not provided any potential investor with
a Collateral Term Sheet (that is required to be filed with the
Commission within two Business Days of first use under the terms of the
Public Securities Association Letter as described below), or (B) has,
prior to its first delivery of such Collateral Term Sheet to a
potential investor, delivered such Collateral Term Sheet to the
Depositor or its counsel and has substantially contemporaneously with
its first delivery of such Collateral Term Sheet to a potential
investor, delivered such Collateral Term Sheet to the Seller or its
counsel, which Collateral Term Sheet, if any, is attached hereto as
Exhibit A.
(ii) It either (A) has not provided any potential investor
with a Structural Term Sheet, Series Term Sheets or Computational
Materials, or (B) has, prior to its first delivery of any such
Structural Term Sheet, Series Term Sheets or Computational Materials to
a potential investor, delivered such Structural Term Sheet, Series Term
Sheets or Computational Materials to the Depositor or its counsel and
has promptly provided any such Structural Term Sheet, Series Term
Sheets or Computational Materials to the Seller or its counsel, which
Structural Term Sheet, Series Term Sheets and Computational Materials,
if any, are attached hereto as Exhibit B.
(iii) Each Collateral Term Sheet bears a legend indicating
that the information contained therein will be superseded by the
description of the collateral contained in the Prospectus Supplement
and, except in the case of the initial Collateral Term Sheet, that such
information supersedes the information in all prior Collateral Term
Sheets.
(iv) Each Structural Term Sheet, Series Term Sheet and all
Computational Materials bear a legend substantially in the form which
has been agreed to by the Underwriters and the Depositor.
(v) It (at its own expense) agrees to obtain and provide to
the Depositor and the Seller on or prior to the Closing Date one or
more accountants' letters in form and substance reasonably satisfactory
to the Underwriters, the Depositor and the Seller relating to the
Collateral Term Sheets, Structural Term Sheets, Series Term Sheets and
Computational Materials, which accountants' letters shall be addressed
to the Depositor and the Seller.
(vi) It has not, and will not, without the prior written
consent of the Depositor, provide any Collateral Term Sheets,
Structural Term Sheets, Series Term Sheets or Computational Materials
to any investor after the date of this Agreement and prior to the
delivery of the Prospectus to such investor.
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For purposes of this Agreement, Series Term Sheets, Collateral Term
Sheets and Structural Term Sheets shall have the respective meanings assigned to
them (a) in the case of Series Term Sheets, in the "No-Action Letter addressed
to Greenwood Trust Company, Discover Card Master Trust I, dated April 5, 1996,
and (b) in the case of Collateral Term Sheets and Structural Term Sheets, in the
February 13, 1995 letter of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ on behalf of the
Public Securities Association (which letter, and the Commission Staff's response
thereto, are publicly available February 17, 1995). The term "Collateral Term
Sheet" as used herein includes any subsequent Collateral Term Sheet that
reflects a substantive change in the information presented. Computational
Materials has the meaning assigned to it in the No-Action Letter dated May 20,
1994 issued by the Division of Corporation Finance of the Commission to ▇▇▇▇▇▇,
Peabody Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated, and ▇▇▇▇▇▇
Structured Asset Corporation, the No-Action Letter dated May 27, 1994 issued by
the Division of Corporation Finance of the Commission to the Public Securities
Association and the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association.
SECTION 6. Conditions to the Underwriters' Obligation. The obligations
of the Underwriters to purchase the Offered Certificates pursuant to this
Agreement are subject to (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Depositor herein contained;
(ii) the performance by the Depositor of all of its obligations hereunder; and
(iii) the following additional conditions as of the Closing Date:
(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 Agreements
shall have been duly performed and complied with and all of the representations
and warranties of the Depositor under any of the Agreements shall be true and
correct as of the Closing Date and no event shall have occurred which, with
notice or the passage of time, would constitute a default under any of the
Agreements, and the Underwriters shall have received certificates to the effect
of the foregoing, each signed by an authorized officer of the Depositor.
(b) Prior to the Closing Date, (i) the Underwriters shall have received
confirmation of the effectiveness of the Registration Statement and (ii) 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, shall be contemplated by the Commission. Any request
of the Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with.
(c) The Representative shall have received a letter dated on or before
the date on which the Prospectus Supplement is dated and printed, in form and
substance reasonably acceptable to the Underwriters and their counsel, prepared
by [ ] (i) regarding certain numerical information contained or incorporated by
reference in the Prospectus Supplement and (ii) relating to certain agreed upon
procedures as requested by the Underwriters relating to the Mortgage Loans.
(d) The Mortgage Loans shall be acceptable to [Fitch Ratings
("Fitch")], [▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's")] and [Standard & Poor's
Ratings Service, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard &
Poor's")], in their sole discretion.
10
(e) The Representative shall have received the following additional
closing documents, in form and substance reasonably satisfactory to the
Representative and its counsel:
(i) the Agreements and all documents required thereunder, duly
executed and delivered by each of the parties thereto other than the
Underwriters and their affiliates;
(ii) an officer's certificate of an officer of the Seller and
an officer's certificate of an officer of the Depositor, in each case
dated as of the Closing Date and reasonably satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, with
resolutions of the member or manager(s), as applicable, and copies of
the certificate of incorporation and the bylaws of each of the
Depositor and the Seller, in each case attached thereto;
(iii) an opinion of counsel reasonably acceptable to the
Underwriters and counsel for the Underwriters, dated the Closing Date,
reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters as to various matters relating to the
Seller and the Depositor;
(iv) opinions of [ ], counsel to the Depositor and the Seller,
or such other counsel reasonably acceptable to the Underwriters and
counsel for the Underwriters, dated the Closing Date, reasonably
satisfactory in form and substance to the Underwriters and counsel for
the Underwriters as to various corporate matters;
(v) an opinion of [ ], special counsel to the Seller and the
Depositor, or such other counsel reasonably acceptable to the
Underwriters and counsel for the Underwriters, dated the Closing Date,
reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters as to various corporate matters;
(vi) an opinion of [ ], counsel for the Underwriters, dated
the Closing Date, as to matters as are customarily requested of
underwriters' counsel and reasonably satisfactory in form and substance
to the Underwriters;
(vii) opinions of counsel for the Depositor, in forms
reasonably acceptable to the Underwriters, their counsel, Fitch,
Standard & Poor's and Moody's as to such matters as shall be
required for the assignment of the ratings to the Offered Certificates
described in the Prospectus Supplement under the heading "Ratings";
(viii) a letter from [Moody's] that it has assigned a rating
of [ ] to the Class A-[ ] Certificates, [ ] to the Class A-[ ]
Certificates, [ ] to the Class M-[ ] Certificates, [ ] to the Class M-[
] Certificates and [ ] to the Class B Certificates;
(ix) a letter from [Standard & Poor's] that it has assigned a
rating of [ ] to the Class A-[ ] Certificates, [ ] to the Class A-[ ]
Certificates, [ ] to the Class M-[ ] Certificates, [ ] to the Class M-[
] Certificates and [ ] to the Class B Certificates;
11
(x) a letter from [Fitch Ratings] that it has assigned a
rating of [ ] to the Class A-[ ] Certificates, [ ] to the Class A-[ ]
Certificates, [ ] to the Class M-[ ] Certificates, [ ] to the Class M-[
] Certificates and [ ] to the Class B Certificates;
(xi) an opinion of counsel for the Trustee dated the Closing
Date, in form and substance reasonably acceptable to the Underwriters,
their counsel, [Fitch], [Standard & Poor's] and [Moody's]; and
(xii) an officer's certificate of an officer of the Trustee,
dated as of the Closing Date, reasonably satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
(f) [The Policy relating to the Class [ ] Certificates, duly executed
and issued at or prior to the Closing Date and conforming in all material
respects to the description thereof in the Prospectus.]
(g) [opinions of special counsel to the Insurer, dated the Closing
Date, reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters as to various corporate matters.]
(h) All proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto shall be reasonably
satisfactory in form and substance to the Representative and its counsel.
(i) The Seller and the Depositor shall have furnished the
Representative with such other certificates of its officers or others and such
other documents or opinions as the Representative or its counsel may reasonably
request.
(j) Subsequent to the execution and delivery of this Agreement none of
the following shall have occurred: (i) trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the over-the-counter
market shall have been suspended or minimum prices shall have been established
on either of such exchanges or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having jurisdiction;
(ii) a banking moratorium shall have been declared by Federal or New York state
authorities; (iii) the United States shall have become engaged in material
hostilities, there shall have been an escalation of such hostilities involving
the United States or there shall have been a declaration of war by the United
States; or (iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets of the United States shall be
such), and in the case of any of the events specified in clauses (i) through
(iv), such event makes it, in the reasonable judgment of the Representative,
impractical to market the Offered Certificates.
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Depositor at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Sections 7 and 8.
12
SECTION 7. Payment of Expenses. The Depositor agrees to pay:
(a) the costs incident to the authorization, issuance, sale and
delivery of the Certificates and any taxes payable in connection therewith; (b)
the costs incident to the preparation, printing and filing under the Securities
Act of the Registration Statement and any amendments and exhibits thereto; (c)
except as otherwise provided in Section 5(a)(iii), the costs of producing and
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), any preliminary prospectus, the Prospectus and any amendment or
supplement to the Prospectus or any document incorporated by reference therein,
all as provided in this Agreement; (d) the costs of reproducing and distributing
this Agreement; (e) the fees and expenses of [ ] in qualifying the Certificates
under the securities laws of the several jurisdictions as provided in Section
5(a)(vi) hereof and of preparing, printing and distributing a Blue Sky
Memorandum and a Legal Investment Survey; (f) any fees charged by securities
rating services for rating the Offered Certificates; (g) the cost of the
accountant's comfort letter relating to the Prospectus Supplement; and (h) all
other costs and expenses incidental to the performance of the obligations of the
Depositor and the Seller (including costs and expenses of counsel to the
Depositor and the Seller); provided that, except as provided in the last
paragraph of this Section 7, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Offered Certificates which they may sell and the expenses of advertising
any offering of the Offered Certificates made by the Underwriters, and the
Underwriters shall pay the cost of the accountants' comfort letters referred to
in Section 5(b)(v).
If this Agreement is terminated because of a breach by the Depositor of
any covenant or agreement hereunder including in accordance with Section 6 or
the failure of any closing conditions set forth in Section 6 (other than the
closing condition set forth in Section 6(h)) to be met, the Depositor shall
cause the Underwriters to be reimbursed for all reasonable out of pocket
expenses incurred by the Underwriters in connection with this Agreement and the
proposed offering and sale of the Offered Certificates, including fees and
disbursements of [ ], counsel for the Underwriters.
SECTION 8. Indemnification and Contribution. (a) The Depositor
indemnifies and holds harmless each Underwriter, each Underwriter's respective
officers and directors and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, as follows:
(i) against any and all losses, claims, expenses, damages or
liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, expenses, damages or
liabilities (or actions in respect thereof including, but not limited
to, any loss, claim, expense, damage or liability related to purchases
and sales of the Offered Certificates) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or arise out of, or are based upon,
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements made
therein not misleading; and will reimburse each Underwriter and each
such controlling person for any legal or other expenses reasonably
incurred by such
13
Underwriter or such controlling person in connection with investigating
or defending any such loss, claim, expense, damage, liability or action
as such expenses are incurred; provided, however, that the Depositor
will not be liable in any such case to the extent that any such loss,
claim, expense, damage or liability arises out of or is based upon an
untrue statement or omission, or alleged untrue statement or omission,
made in any of such documents (x) in reliance upon and in conformity
with any Underwriters' Information or (y) in any Collateral Term Sheet,
Structural Term Sheet, Series Term Sheet or Computational Materials,
except in the case of this clause (y) to the extent that any untrue
statement or omission or alleged untrue statement or alleged omission
therein results (or is alleged to have resulted) from an error or
material omission in the information concerning the characteristics of
the Mortgage Loans furnished by the Seller to the Underwriters for use
in the preparation of any Collateral Term Sheet, Structural Term Sheet,
Series Term Sheet and/or Computational Materials (any such information,
the "Pool Information"), which error was not superseded or corrected by
the delivery to the Underwriters of corrected written or electronic
information, or for which the Depositor did not provide timely written
notice of such error to the Underwriters (any such uncorrected Pool
Information, a "Pool Error");
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever, in each case based upon any such untrue statement or
omission, or any such alleged untrue statement or omission (and subject
to the proviso contained in clause (i) above), if such settlement is
effected with the written consent of the Depositor; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by any such Underwriter),
reasonably incurred in investigating, preparing to defend or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever, in each case based upon any such untrue statement or
omission, or any such alleged untrue statement or omission (and subject
to the proviso contained in clause (i) above), to the extent that any
such expense is not paid under clause (i) or clause (ii) above.
This indemnity agreement will be in addition to any liability which the
Depositor may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless each of the Depositor, each of its directors, each of its
officers who have signed the Registration Statement and each person, if any, who
controls the Depositor within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any and all losses, claims, expenses,
damages or liabilities to which the Depositor or any such director, officer or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in (i) Derived Information provided by
such Underwriter (except to the extent resulting from a Pool Error) and
14
(ii) the Registration Statement, the Prospectus or any amendment or supplement
thereto, or arise out of, or are based upon, the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements made therein not misleading, but with respect
to clause (b)(ii) above, only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with any Underwriters' Information; and will reimburse
any legal or other expenses reasonably incurred by the Depositor or any such
director, officer or controlling person in connection with investigating,
preparing to defend or defending any such loss, claim, expense, damage,
liability or action as such expenses are incurred. This indemnity agreement will
be in addition to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of any claim or the commencement of any action described therein, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party of the
claim or commencement of the action; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
that it may have to any indemnified party otherwise than under this Agreement.
In case any such claim or action is brought against any indemnified party, and
it notifies the indemnifying party thereof, the indemnifying party will be
entitled to participate therein, and, to the extent that it may wish to do so,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election to assume the defense of such claim or action
and the appointment of counsel as provided under this Section 8, such
indemnifying party shall not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and in respect of which
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability and fault on any claims that are the subject matter of such action.
Notwithstanding anything to the contrary in this Section 8, the indemnifying
party or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
disbursements of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all indemnified parties; provided, however,
that if any indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from, adverse to or additional to those available to any other
indemnified party, such indemnified party shall have the right to select
separate counsel (at the expense of the indemnifying party or parties) to assert
such legal defenses and to otherwise participate in the defense of such
indemnified party or parties. Each indemnified party, as a condition of the
indemnity agreements contained in this Section 8, shall use all reasonable
efforts to cooperate with the indemnifying party in the defense of any claim or
action.
(d) If the indemnification provided for in Section 8(a) or 8(b)(ii) is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a
15
result of the losses, claims, damages or liabilities referred to in subsection
(a) or (b) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Depositor on the one hand and the Underwriters
on the other from the offering of the Offered Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Depositor on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. If the indemnification
provided for in Section 8(b)(i) is unavailable or insufficient to hold harmless
the indemnified party under Section 8(b)(i), then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in Section (b)(i) in
such proportion as appropriate to reflect the relative fault of the Depositor on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Depositor on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Offered Certificates (before deducting expenses) received by the
Depositor bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Depositor or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total initial public offering price of the Offered Certificates
underwritten by it and sold to the public exceeds the amount of any damages
which such Underwriter has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) For purposes hereof, as to each Underwriter, the term "Derived
Information" means such information, if any, in the Series Term Sheets,
Collateral Term Sheets, Structural Term Sheets and/or Computational Materials
that (i) is not contained or corrected in the Prospectus taking into account
information incorporated therein by reference (other than information
incorporated by reference from the Series Term Sheets, Collateral Term Sheets,
Structural Term Sheets and/or Computational Materials) or (ii) is not contained
in any Pool Information.
(f) Each Underwriter agrees to deliver to the Depositor any Collateral
Term Sheets, Structural Term Sheets, Computational Materials and Series Term
Sheets which it has prepared in connection with the Offered Certificates a
reasonable time prior to the dissemination of such
16
materials to any potential investor and shall not disseminate any such materials
to which the Depositor reasonably objects.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Depositor or the
Seller submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the Underwriters
or controlling persons thereof, or by or on behalf of the Depositor, and shall
survive delivery of any Offered Certificates to the Underwriters.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters participating in the public offering of the Offered
Certificates shall fail at the Closing Date to purchase the Offered Certificates
which it is (or they are) obligated to purchase hereunder (the "Defaulted
Certificates"), then the non-defaulting Underwriters shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Certificates in such amounts as may be agreed
upon and upon the terms herein set forth. If, however, the non-defaulting
Underwriters have not completed such arrangements within such 24-hour period,
then
(i) if the aggregate principal amount of Defaulted
Certificates does not exceed 10% of the aggregate principal amount of
the Offered Certificates to be purchased pursuant to this Agreement,
the non-defaulting Underwriters named in this Agreement shall be
obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all such non-defaulting Underwriters; or
(ii) if the aggregate principal amount of Defaulted
Certificates exceeds 10% of the aggregate principal amount of the
Offered Certificates to be purchased pursuant to this Agreement, this
Agreement shall terminate, without any liability on the part of the
Depositor or any non-defaulting Underwriters.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from the liability with respect to any default of such
Underwriter under this Agreement.
In the event of a default by any Underwriter as set forth in this
Section 10, each of the non-defaulting Underwriters and the Depositor shall have
the right to postpone the Closing Date for a period not exceeding five Business
Days in order that any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements may be effected.
SECTION 11. Termination of Agreement. The Underwriters may terminate
this Agreement immediately upon notice to the Depositor, at any time at or prior
to the Closing Date, if the events set forth in Section 6(h) of this Agreement
shall occur and be continuing, or if any other closing condition set forth in
Section 6 shall not have been fulfilled when required to be fulfilled. In the
event of any such termination, the provisions of Section 7, the indemnity and
17
contribution agreements set forth in Section 8, and the provisions of Sections
9, 14 and 16 shall remain in effect.
SECTION 12. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to [Underwriter/Address]; and
(b) if to the Depositor or the Seller, shall be delivered or sent by
mail, telex or facsimile transmission, addressed to such party at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention [ ].
SECTION 13. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Seller and the Depositor, and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that the representations, warranties, indemnities and agreements
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any of the Underwriters within the
meaning of Section 15 of the Securities Act, and for the benefit of each
Underwriter's respective officers and directors and for the benefit of directors
of the Depositor, officers of the Depositor who have signed the Registration
Statement and any person controlling the Depositor within the meaning of Section
15 of the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
13, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
SECTION 14. Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Certificates and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
SECTION 15. Definition of the Term "Business Day." For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
SECTION 16. Governing Law: Submission to Jurisdiction; Waiver of Jury
Trial. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to the principles of
conflicts of law thereof.
The parties hereto hereby submit to the jurisdiction of the United
States District Court for the Southern District of New York and any court in the
State of New York located in the City and County of New York, and any appellate
court from any thereof, in any action, suit or proceeding brought against it or
in connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby agree that all claims in respect of any
such action or proceeding may be heard or determined in New York State court or,
to the extent permitted by law, in such federal court.
18
The parties hereto hereby irrevocably waive, to the fullest extent
permitted by law, any and all rights to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
SECTION 17. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 18. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
SECTION 19. Obligations of Seller. The Seller agrees with the
Underwriters, for the sole and exclusive benefit of each such Underwriter, each
such Underwriter's officers and directors and each person controlling such
Underwriter within the meaning of the Securities Act, and not for the benefit of
any assignee thereof or any other person or persons dealing with such
Underwriter as follows: in consideration of and as an inducement to their
agreement to purchase the Offered Certificates from the Depositor, to indemnify
and hold harmless each Underwriter against any failure by the Depositor to
perform its obligations to the Underwriters hereunder, including, without
limitation, any failure by the Depositor to honor any obligation to any
Underwriter pursuant to Section 8 hereof.
19
If the foregoing correctly sets forth the agreement between the
Depositor and the Underwriters, please indicate your acceptance in the space
provided for the purpose below.
Very truly yours,
AEGIS ASSET BACKED SECURITIES
CORPORATION
By:__________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
[Underwriter]
Acting on its own behalf and as
Representative of the Underwriters
referred to in the foregoing Agreement
By:___________________________________
Name:
Title:
SCHEDULE A
Class A-[ ] Certificates
Underwriting
Underwriters Discount Principal Amount Purchase Price (%)
------------ ------------ ---------------- ------------------
% $ %
% $ %
% $ %
% $ %
Class A-[ ] Certificates
Underwriting
Underwriters Discount Principal Amount Purchase Price (%)
------------ ------------ ---------------- ------------------
% $ %
% $ %
% $ %
% $ %
Class M-[ ] Certificates
Underwriting
Underwriters Discount Principal Amount Purchase Price (%)
------------ ------------ ---------------- ------------------
% $ %
% $ %
% $ %
% $ %
Class M-[ ] Certificates
Underwriting
Underwriters Discount Principal Amount Purchase Price (%)
------------ ------------ ---------------- ------------------
% $ %
% $ %
% $ %
% $ %
A-1
Class B Certificates
Underwriting
Underwriters Discount Principal Amount Purchase Price (%)
------------ ------------ ---------------- ------------------
% $ %
% $ %
% $ %
% $ %
A-2
EXHIBIT A
EXHIBIT B