Exhibit 1.1
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
MORTGAGE PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
Dated: [___________]
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
1. INTRODUCTION. Structured Asset Mortgage Investments II Inc., a
Delaware corporation (the "Depositor"), from time to time proposes to issue and
sell Mortgage Pass-Through Certificates ("Certificates") in various series (each
a "Series"), and, within each Series, in various classes, in one or more
offerings on terms determined at the time of sale. The Certificates of each
series will be issued pursuant to a pooling and servicing agreement (each, a
"Pooling and Servicing Agreement") among the Depositor, , as depositor, EMC
Mortgage Corporation, as Seller and certain instances, as company, one or more
master servicers, a third-party trustee (the "Trustee") and, in certain
instances, a securities administrator (the "Securities Administrator"). Upon
issuance, the Certificates of each series will evidence undivided interests in
the Trust Fund (as defined in the Pooling and Servicing Agreement) established
for such series containing mortgages or, in the event the Trust Fund, or a
portion thereof, constitutes a real estate mortgage investment conduit
("REMIC"), the Trust Fund may contain interests issued by a trust which will
contain mortgages, all as described in the Prospectus (as defined below). Terms
not defined herein which are defined in the Pooling and Servicing Agreement
shall have the meanings ascribed to them in the Pooling and Servicing Agreement.
Whenever the Depositor determines to make an offering of a Series of
Certificates (an "Offering") through you or an underwriting syndicate managed or
co-managed by you, it will offer to enter into an agreement ("Terms Agreement")
providing for the sale of such Certificates to, and the purchase and offering
thereof by, you and such other co-managers and underwriters, if any, which have
been selected by you and have authorized you to enter into such Terms Agreement
and other related documentation on their behalf (collectively, the
"Underwriters," which term shall include you whether acting alone in the sale of
Certificates or as a co-manager or as a member of an underwriting syndicate).
The Terms Agreement relating to each Offering shall specify the principal amount
of Certificates to be issued and their terms not otherwise specified in the
Pooling and Servicing Agreement, the price at which the Certificates are to be
purchased by each of the Underwriters from the Depositor and the initial public
offering price or the method by which the price at which the Certificates are to
be sold will be determined. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between you and the Depositor. Each Offering
governed by this Agreement, as supplemented by the applicable Terms Agreement,
shall inure to the benefit of and be binding upon the Depositor and each of the
Underwriters participating in the Offering of such Certificates.
The Depositor hereby agrees with the Underwriters as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The Depositor
represents and warrants to you as of the date hereof, and to each Underwriter
named in the applicable Terms Agreement as of the date of such Terms Agreement,
as follows:
(a) A registration statement on Form S-3, including a prospectus, and
such amendments thereto as may have been required to the date hereof, relating
to the Certificates and the offering thereof from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended (the "Act"), have
been filed with the Securities and Exchange Commission (the "Commission") and
such registration statement as amended has become effective. Such registration
statement as amended and the prospectus relating to the sale of Certificates
constituting a part thereof as from time to time amended or supplemented
(including any prospectus filed with the Commission pursuant to Rule 424 of the
rules and regulations of the Commission (the "Rules and Regulations") under the
Act, including any documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act") on or before the Effective Date of the
Registration Statement or the date of the Prospectus Supplement, are
respectively referred to herein as the "Registration Statement" and the
"Prospectus"; provided, however, that a supplement to the Prospectus (a
"Prospectus Supplement") prepared pursuant to Section 5(a) hereof shall be
deemed to have supplemented the Prospectus only with respect to the Offering of
the Series of Certificates to which it relates. The conditions of Rule 415 under
the Act have been satisfied with respect to the Depositor and the Registration
Statement. The Depositor further proposes to prepare, after the final terms of
all classes of the Certificates have been established, either a Free Writing
Prospectus that will contain substantially all information that will appear in
the Prospectus Supplement, to the extent that such information is known at that
time and minus specific sections including the Method of Distribution section or
an Iterative Information Package (such Free Writing Prospectus, together with
the Basic Prospectus, or any Iterative Information Package, the "Definitive Free
Writing Prospectus"). The Definitive Free Writing Prospectus must be provided to
each investor prior to the time of Contract of Sale (as defined herein). An
"Iterative Information Package" shall mean with respect to any class of
Certificates, collectively the following documents: (i) one or more term sheets
or other Written Communications, providing information about that class of
Certificates and the structure and other cash flow characteristics thereof,
information regarding the payment priority of such certificates, the basic terms
of any credit enhancements, including any subordination, as known at the time of
such term sheet, factual information about the Mortgage Loans (other than any
Underwriter Derived Information) as known at the time of such term sheet,
information regarding the parties to the transaction as known at the time of
such term sheet, and the tax, ERISA and SMMEA characteristics of that class of
Certificates as known at the time of such term sheet, (ii) a term sheet
supplement, containing relevant risk factors and additional information similar
to the information in the Prospectus Supplement to the extent known at the time
of such term sheet supplement, and (iii) the Prospectus, which may be provided
by a link to a website. Each of the items described in (i) and (ii) in the
preceding sentence shall constitute a Free Writing Prospectus.
(b) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus and any static pool information
provided by the Depositor pursuant to Regulation AB Item 1105(a), (b) and (c),
but deemed excluded from the Registration Statement and the Prospectus pursuant
to Regulation AB Item 1105(d) conformed in all material respects to the
requirements of the Act and the Rules and Regulations, and did not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and on the date of each Terms Agreement, the Registration Statement and the
Prospectus will conform in all material respects to the requirements of the Act
and the Rules and Regulations, and the Prospectus and any static pool
information provided by the Depositor pursuant to Regulation AB Item 1105(a),
(b) and (c), but deemed excluded from the Registration Statement and the
Prospectus pursuant to Regulation AB Item 1105(d) will not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading; provided, however,
that the foregoing does not apply to any information contained in or omitted
from the portions of the Prospectus set forth under the caption "Method of
Distribution" relating to the Certificates and the stabilization legend required
by Item 502(d)(1) under Regulation S-K of the Act (the "Underwriter
Information"). In addition, the Definitive Free Writing Prospectus, as of the
date thereof and as of the Closing Date, did not and will not contain an untrue
statement of a material fact and did not and will not omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The effective date
shall mean the earlier of the date by which the Prospectus Supplement is first
used and the time of the first Contract of Sale to which such Prospectus
Supplement relates.
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus except as otherwise stated therein,
(A) there has been no material adverse change in the condition, financial or
otherwise, earnings, affairs, regulatory situation or business prospects of the
Depositor whether or not arising in the ordinary course of business and (B)
there have been no transactions entered into by the Depositor which are
material, other than those in the ordinary course of business.
(d) The Depositor is not, as of the date upon which it delivers the
Definitive Free Writing Prospectus, an Ineligible Issuer, as such term is
defined in Rule 405 of the 1933 Act Regulations.
(e) This Agreement has been, and the Pooling and Servicing Agreement
when executed and delivered as contemplated hereby and thereby will have been,
duly executed and delivered by the Depositor and each constitutes, or will
constitute when so executed and delivered, a legal, valid and binding instrument
enforceable against the Depositor in accordance with its terms, subject, as to
the enforceability of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting the rights of creditors
generally, and to general principles of equity and the discretion of the court
(regardless of whether enforceability of such remedies is considered in a
proceeding in equity or at law).
(f) At the applicable Closing Date, each applicable Terms Agreement
will have been duly authorized, executed and delivered by the Depositor and will
be a legal, valid and binding obligation of the Depositor enforceable in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance and other laws affecting the rights of
creditors generally, and to general principles of equity and the discretion of
the court (regardless of whether enforceability of such remedies is considered
in a proceeding in equity or at law).
(g) The issuance of the Certificates has been duly authorized by the
Depositor and, when such Certificates are executed and authenticated in
accordance with the Pooling and Servicing Agreement and delivered against
payment pursuant to this Agreement, such Certificates will be validly issued and
outstanding; and the Certificates will be entitled to the benefits provided by
the Pooling and Servicing Agreement. The Certificates are in all material
respects in the form contemplated by the Pooling and Servicing Agreement.
(h) Neither the Depositor nor the Trust Fund is or, as a result of the
offer and sale of the Certificates as contemplated in this Agreement will
become, an "investment company" as defined in the Investment Company Act of
1940, as amended (the "Investment Company Act"), or an "affiliated person" of
any such "investment company" that is registered or is required to be registered
under the Investment Company Act (or an "affiliated person" of any such
"affiliated person"), as such terms are defined in the Investment Company Act.
(i) The representations and warranties made by the Depositor in the
Pooling and Servicing Agreement and made in any Officer's Certificate of the
Depositor delivered pursuant to the Pooling and Servicing Agreement will be true
and correct at the time made and on the Closing Date.
3. PURCHASE, SALE AND DELIVERY OF CERTIFICATES. Delivery of and
payment for the Certificates shall be made at your office or at such other
location as you shall make known at such time as shall be specified in the
applicable Terms Agreement, each such time being herein referred to as a
"Closing Date." Delivery of the Certificates shall be made by the Depositor to
each Underwriter against payment of the purchase price specified in the
applicable Terms Agreement in Federal Funds by wire or check. Unless delivery is
made through the facilities of the Depository Trust Company, the Certificates so
to be delivered will be in definitive, fully registered form, in such
denominations and registered in such names as you request, and will be made
available for inspection and packaging at your office at least twenty-four hours
prior to the applicable Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that each Underwriter
proposes to offer the Certificates for sale to the public as set forth in the
Prospectus.
(a) It is understood that each Underwriter proposes to offer and/or
solicit offers for the Certificates to be purchased by it for sale to the public
as set forth in the Prospectus and each Underwriter agrees that all such offers,
solicitations and sales by it shall be made in compliance with all applicable
laws and regulations. Prior to the date hereof, you have not offered, pledged,
sold, disposed of or otherwise transferred any Certificate or any security
backed by the Mortgage Loans, any interest in any Certificate or such security
or any Mortgage Loan.
(b) It is understood that each Underwriter will solicit offers to
purchase the Certificates as follows:
(1) Prior to the time you have received the Definitive Free
Writing Prospectus you may, in compliance with the provisions of this
Agreement, solicit offers to purchase Certificates; provided that, you
shall not accept any such offer to purchase a Certificate or any interest
in any Certificate or Mortgage Loan or otherwise enter into any Contract of
Sale for any Certificate, any interest in any Certificate or any Mortgage
Loan prior to the investor's receipt of the Definitive Free Writing
Prospectus.
(2) Any Free Writing Prospectus (other than the Definitive Free
Writing Prospectus) relating to the Certificates used by an Underwriter in
compliance with the terms of this Agreement prior to the time such
Underwriter has entered into a Contract of Sale for Certificates shall
prominently set forth substantially the following statement:
The information in this free writing prospectus is
preliminary, and will be superseded by the Definitive Free
Writing Prospectus. This free writing prospectus is being
delivered to you solely to provide you with information
about the offering of the Certificates referred to in this
free writing prospectus and to solicit an offer to purchase
the Certificates, when, as and if issued. Any such offer to
purchase made by you will not be accepted and will not
constitute a contractual commitment by you to purchase any
of the Certificates until we have accepted your offer to
purchase Certificates. We will not accept any offer by you
to purchase Certificates, and you will not have any
contractual commitment to purchase any of the Certificates
until after you have received the Definitive Free Writing
Prospectus. You may withdraw your offer to purchase
Certificates at any time prior to our acceptance of your
offer.
"Written Communication" has the same meaning as that term is defined in
in Rule 405 of the 1933 Act Regulations.
(3) Any Free Writing Prospectus relating to the Certificates and
used by an Underwriter in connection with marketing the Certificates,
including the Definitive Free Writing Prospectus, shall prominently set
forth substantially the following statement:
The Certificates referred to in these materials are being
sold when, as and if issued. You are advised that
Certificates may not be issued that have the characteristics
described in these materials. Our obligation to sell such
Certificates to you is conditioned on the mortgage loans and
certificates having the characteristics described in these
materials. If for any reason we do not deliver such
Certificates, we will notify you, and neither the issuer nor
any underwriter will have any obligation to you to deliver
all or any portion of the Certificates which you have
committed to purchase, and none of the issuer nor any
underwriter will be liable for any costs or damages
whatsoever arising from or related to such non-delivery.
(c) It is understood that you will not enter into a Contract of Sale
with any investor until the Definitive Free Writing Prospectus has been conveyed
to the investor. For purposes of this Agreement, "Contract of Sale" shall have
the same meaning as in Rule 159 of the 1933 Act Regulations and all Commission
guidance relating to Rule 159. The Definitive Free Writing Prospectus shall
prominently set forth substantially the following statement:
This Definitive Free Writing Prospectus supersedes the information in
any free writing prospectus previously delivered in connection with
this offering, to the extent that this Definitive Free Writing
Prospectus is inconsistent with any information in any free writing
prospectus delivered in connection with this offering.
(d) It is understood that each Underwriter may prepare and provide to
prospective investors certain Free Writing Prospectuses (as defined below),
subject to the following conditions:
(1) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, an Underwriter shall not convey
or deliver any Written Communication to any person in connection with the
initial offering of the Certificates, unless such Written Communication
(i) is made in reliance on Rule 134 under the Act, (ii) constitutes
a prospectus satisfying the requirements of Rule 430B under the Act, (iii)
is the Definitive Free Writing Prospectus, or (iv) both (1) constitutes a
Free Writing Prospectus (as defined below) used in reliance on Rule 164 and
(2) includes only information that is within the definition of ABS
Informational and Computational Materials as defined in Item 1100 of
Regulation AB, or Permitted Additional Materials.
(2) Each Underwriter shall comply with all applicable laws and
regulations in connection with the use of Free Writing Prospectuses,
including but not limited to Rules 164 and 433 of the 1933 Act Regulations
and all Commission guidance relating to Free Writing Prospectuses,
including but not limited to Commission Release No. 33-8591.
(3) For purposes hereof, "Free Writing Prospectus" shall have the
meaning given such term in Rules 405 and 433 of the 1933 Act Regulations.
"Issuer Information" shall mean information included in a Free Writing
Prospectus that both (i) is within the types of information specified in
clauses (1) to (5) of footnote 271 of Commission Release No. 33-8591
(Securities Offering Reform) as shown in Exhibit C hereto and (ii) has been
either prepared by, or has been reviewed and approved by, the Depositor.
"Underwriter Derived Information" shall refer to information of the type
described in clause (5) of such footnote 271 when prepared by an
Underwriter. "Permitted Additional Materials" shall mean information that
is not ABS Informational and Computational Materials and (x) that are
referred to in Section 4(d)(12)), (y) that constitute Certificate price,
yield, weighted average life, subscription or allocation information, or a
trade confirmation, or (z) otherwise with respect to which the Depositor
has provided written consent to the Underwriter to include in a Free
Writing Prospectus. As used herein with respect to any Free Writing
Prospectus, "Pool Information" shall mean the information with respect to
the characteristics of the Mortgage Loans and administrative and servicing
fees, as provided by or on behalf of the Depositor to the Underwriter at
the time most recent to the date of such Free Writing Prospectus.
(4) All Free Writing Prospectuses provided to prospective
investors, whether or not filed with the Commission, shall bear a legend
including substantially the following statement:
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING
A PROSPECTUS) WITH THE SEC FOR THE OFFERING TO WHICH THIS
COMMUNICATION RELATES. BEFORE YOU INVEST, YOU SHOULD READ
THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER
DOCUMENTS THE ISSUER HAS FILED WITH THE SEC FOR MORE
COMPLETE INFORMATION ABOUT THE ISSUER AND THE OFFERING. YOU
MAY GET THESE DOCUMENTS AT NO CHARGE BY VISITING ▇▇▇▇▇ ON
THE SEC WEB SITE AT ▇▇▇.▇▇▇.▇▇▇ [AT
"▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇", OR AT UNDERWRITER
WEBSITE]. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR ANY
DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND
YOU THE PROSPECTUS AT NO CHARGE IF YOU REQUEST IT BY CALLING
TOLL-FREE ▇-▇▇▇-▇▇▇-▇▇▇▇ OR VIA E-MAIL AT
________________________.
The Depositor shall have the right to require additional specific legends
or notations to appear on any Free Writing Prospectus, the right to require
changes regarding the use of terminology and the right to determine the
types of information appearing therein with the approval of the Underwriter
(which shall not be unreasonably withheld).
(5) Each Underwriter shall deliver to the Depositor and its
counsel, (in such format as required by the Depositor) prior to the
proposed date of first use thereof, (i) any Free Writing Prospectus
prepared by or on behalf of that Underwriter that contains any information
that, if reviewed and approved by the Depositor, would be Issuer
Information, and (ii) any Free Writing Prospectus or portion thereof
prepared by that Underwriter that contains only a description of the final
terms of the Certificates after such terms have been established for all
classes of Certificates being publicly offered. No information in any Free
Writing Prospectus (other than the Definitive Free Writing Prospectus)
shall consist of information of a type that is not included within the
definition of ABS Informational and Computational Materials, or is not
Permitted Additional Materials. To facilitate filing to the extent required
by Section 5(b) or 4(f), as applicable, all Underwriter Derived Information
shall be set forth in a document separate from the document including
Issuer Information. All Free Writing Prospectuses described in this
subsection (5) must be approved by the Depositor before the Underwriter
provides the Free Writing Prospectus to investors pursuant to the terms of
this Agreement. Notwithstanding the foregoing, the Underwriter shall not be
required to deliver any Free Writing Prospectus to the extent that it does
not contain substantive changes from or additions to any Free Writing
Prospectus previously approved by the Depositor.
(6) Each Underwriter shall provide the Depositor with a letter
from [___________], certified public accountants, prior to the Closing
Date, with respect to any Free Writing Prospectus provided by that
Underwriter to the Depositor under Section 4(d)(5), satisfactory in form
and substance to the Depositor and their counsel and the Underwriter, to
the effect that such accountants have performed certain specified
procedures, all of which have been agreed to by the Depositor and the
Underwriter, as a result of which they determined that all accounting,
financial or statistical information that is included in such Free Writing
Prospectus, is accurate except as to such matters that are not deemed by
the Depositor and the Underwriter to be material. The foregoing letter
shall be at the expense of the respective Underwriter.
(7) None of the information in the Free Writing Prospectuses may
conflict with the information contained in the Prospectus or the
Registration Statement.
(8) The Depositor shall not be obligated to file any Free Writing
Prospectuses that have been determined to contain any material error or
omission, unless the Depositor is required to file the Free Writing
Prospectus pursuant to Section 5(b) below. In the event that an Underwriter
becomes aware that, as of the date on which an investor entered into an
agreement to purchase any Certificates, any Free Writing Prospectus
prepared by or on behalf of that Underwriter and delivered to such investor
contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained therein,
in light of the circumstances under which they were made, not misleading
(such Free Writing Prospectus, a "Defective Free Writing Prospectus"), such
Underwriter shall notify the Depositor thereof as soon as practical but in
any event within one business day after discovery.
(9) If any Underwriter does not provide any Free Writing
Prospectuses to the Depositor pursuant to subsection (5) above, that
Underwriter shall be deemed to have represented, as of the Closing Date,
that it did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the
Certificates that is required to be filed with the Commission by the
Depositor as a Free Writing Prospectus (other than the Definitive Free
Writing Prospectus) in accordance with the 1933 Act Regulations.
(10) In the event of any delay in the delivery by the Underwriter
to the Depositor of any Free Writing Prospectuses required to be delivered
in accordance with subsection (5) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to subsection (6)
above, the Depositor shall have the right to delay the release of the
Prospectus to investors or to the Underwriter, to delay the Closing Date
and to take other appropriate actions in each case as necessary in order to
allow the Depositor to comply with its agreement set forth in Section 5(b)
to file the Free Writing Prospectuses by the time specified therein.
(11) Each Underwriter represents that it has in place, and
covenants that it shall maintain internal controls and procedures which it
reasonably believes to be sufficient to ensure full compliance with all
applicable legal requirements of the 1933 Act Regulations with respect to
the generation and use of Free Writing Prospectuses in connection with the
offering of the Certificates. In addition, each Underwriter shall, for a
period of at least three years after the date hereof, maintain written
and/or electronic records of any Free Writing Prospectus used to solicit
offers to purchase Certificates to the extent not filed with the
Commission.
(12) It is understood and agreed that all information provided by
any Underwriter to or through Bloomberg or Intex or similar entities for
use by prospective investors, or imbedded in any CDI file provided to
prospective investors, to the extent constituting a Free Writing
Prospectus, shall be deemed for all purposes hereof to be a Free Writing
Prospectus not containing Issuer Information. In connection therewith, the
Underwriter agrees that it shall not provide any information constituting
Issuer Information through the foregoing media unless that information is
contained either in the Definitive Free Writing Prospectus or in a Free
Writing Prospectus delivered in compliance with Section 4(d)(5).
(e) Each Underwriter covenants with the Depositor that after the final
Prospectus is available such Underwriter shall not distribute any written
information concerning the Certificates to a prospective investor unless such
information is preceded or accompanied by the final Prospectus. It is understood
and agreed that the use of written information in accordance with the preceding
sentence is not a Free Writing Prospectus and is not otherwise restricted or
governed in any way by this Agreement.
(f) Each Underwriter shall file any Free Writing Prospectus that has
been distributed by that Underwriter in a manner that could lead to its broad,
unrestricted dissemination not later than the date of first use; provided that,
if that Free Writing Prospectus contains only information of a type included
within the definition of ABS Informational and Computational Materials then such
filing shall be made within the later of (i) two business days after the
Underwriter first provides this information to investors and (ii) the date upon
which the Depositor is required to file the Prospectus Supplement with the
Commission pursuant to Rule 424(b)(5) of the 1933 Act Regulations; provided
further, that the Depositor shall not be required to file any Free Writing
Prospectus that does not contain substantive changes from or additions to a Free
Writing Prospectus previously filed with the Commission.
(g) Each Underwriter further agrees that (i) if the Prospectus is not
delivered with the confirmation in reliance on Rule 172, it will include in
every confirmation sent out the notice required by Rule 173 informing the
investor that the sale was made pursuant to the Registration Statement and that
the investor may request a copy of the Prospectus from such Underwriter; (ii) if
a paper copy of the Prospectus is requested by a person who receives a
confirmation, such Underwriter shall deliver a paper copy of such Prospectus;
(iii) if an electronic copy of the Prospectus is delivered by an Underwriter for
any purpose, such copy shall be the same electronic file containing the
Prospectus in the identical form transmitted electronically to such Underwriter
by or on behalf of the Depositor specifically for use by such Underwriter
pursuant to this Section 4(h) ; for example, if the Prospectus is delivered to
an Underwriter by or on behalf of the Depositor in a single electronic file in
..pdf format, then such Underwriter will deliver the electronic copy of the
Prospectus in the same single electronic file in .pdf format. Each Underwriter
further agrees that (i) if it delivers to an investor the Prospectus in .pdf
format, upon such Underwriter's receipt of a request from the investor within
the period for which delivery of the Prospectus is required, such Underwriter
will promptly deliver or cause to be delivered to the investor, without charge,
a paper copy of the Prospectus and (ii) it will provide to the Depositor any
Free Writing Prospectuses, or portions thereof, which the Depositor is required
to file with the Commission in electronic format and will use reasonable efforts
to provide to the Depositor such Free Writing Prospectuses, or portions thereof,
in either Microsoft Word(R) or Microsoft Excel(R) format and not in .pdf format,
except to the extent that the Depositor, in its sole discretion, waives such
requirements.
5. COVENANTS OF THE DEPOSITOR. The Depositor covenants and agrees with
you and the several Underwriters participating in the Offering of any Series of
Certificates that:
(a) In connection with the execution of each Terms Agreement, the
Depositor will prepare a Prospectus Supplement to be filed under the Act setting
forth the principal amount of Certificates covered thereby and their terms not
otherwise specified in the Prospectus, the price at which the Certificates are
to be purchased by the several Underwriters from the Depositor, either the
initial public offering price or the method by which the price at which the
Certificates are to be sold will be determined, the selling concession and
reallowance, if any, any delayed delivery arrangements, and such other
information as you and the Depositor deem appropriate in connection with the
offering of the Certificates, but the Depositor will not file any amendments to
the Registration Statement or any amendments or supplements to the Prospectus,
unless it shall first have delivered copies of such amendments or supplements to
you, and you shall not have objected thereto promptly after receipt thereof. The
Depositor will advise you or your counsel promptly (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
communication suspending or preventing, or threatening to suspend or prevent,
the offer and sale of the Certificates, 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.
(b) The Depositor shall file any Free Writing Prospectus prepared by
the Depositor (including the Definitive Free Writing Prospectus), and any Issuer
Information contained in any Free Writing Prospectus provided to it by each
Underwriter under Section 4(d)(5), not later than the date of first use of the
Free Writing Prospectus, except that:
(1) As to any Free Writing Prospectus or portion thereof that
contains only (A) a description of the final terms of the Certificates
after such terms have been established for all classes of Certificates
being publicly offered, may be filed by the Depositor within two days of
the later of (i) the date such final terms have been established for all
classes of Certificates being publicly offered and (ii) the date of first
use; and (B) a description of the terms of the Certificates that does not
reflect the final terms after they have been established for all classes of
all Certificates is not required to be filed; and
(2) Notwithstanding clause (1) above, as to any Free Writing
Prospectus or portion thereof required to be filed that contains only
information of a type included within the definition of ABS Informational
and Computational Materials, the Depositor shall file such Free Writing
Prospectus or portion thereof within the later of (i) two business days
after the Underwriter first provides this information to investors and (ii)
the date upon which the Depositor is required to file the Prospectus
Supplement with the Commission pursuant to Rule 424(b)(5) of the Act;
provided further, that prior to such use of any Free Writing Prospectuses by the
Depositor, the Underwriter must comply with its obligations pursuant to Section
4(d) and that the Depositor shall not be required to file any Free Writing
Prospectus that does not contain substantive changes from or additions to a Free
Writing Prospectus previously filed with the Commission.
(c) If at any time when a Prospectus relating to the Certificates 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 an untrue statement of
a material fact or omit to state a material fact necessary 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 the Prospectus
to comply with the Act, the Depositor promptly will prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance.
(d) If the Depositor or any Underwriter determines or becomes aware
that any Written Communication (including without limitation any Free Writing
Prospectus) or oral statement contains an untrue statement of material fact or
omits to state a material fact necessary to make the statements, in light of the
circumstances under which they were made, not misleading at the time that a
Contract of Sale was entered into with any investor, when considered in
conjunction with all information conveyed at the time of Contract of Sale,
either the Depositor or that Underwriter may prepare corrective information with
notice to the other party and any other Underwriters, and the Underwriter
dealing with that investor shall deliver such information in a manner reasonably
acceptable to that Underwriter and the Depositor, to any person with whom a
Contract of Sale was entered into, and such information shall provide any such
person with the following:
(1) Adequate disclosure of the contractual arrangement;
(2) Adequate disclosure of the person's rights under the existing
Contract of Sale at the time termination is sought;
(3) Adequate disclosure of the new information that is necessary
to correct the misstatements or omissions in the information given at the
time of the original Contract of Sale; and
(4) A meaningful ability to elect to terminate or not terminate
the prior Contract of Sale and to elect to enter into or not enter into a
new Contract of Sale.
To the extent that the Underwriter incurs any costs to the investor in
connection with any such termination or reformation of a Contract of Sale, the
Depositor shall reimburse the Underwriter for such costs to the extent that the
defective information was of a type that the Depositor is responsible for under
Section 7(a).
(e) With respect to each Series of Certificates, the Depositor will
make generally available to the holders of the Certificates and will deliver to
you, in each case as soon as practicable, an earnings statement covering the
twelve-month period beginning after the date of the Terms Agreement in respect
of such series of Certificates, which will satisfy the provisions of Section 11
(a) of the Act with respect to the Certificates.
(f) The Depositor will furnish to you 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, in each case as soon as available and in such quantities as you
request; provided, however, that you will provide the notice specified in
Section 4(h) in every confirmation and will only deliver the prospectus to those
investors that request a paper copy thereof.
(g) The Depositor will arrange for the qualification of the
Certificates for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as you reasonably designate and will
continue such qualifications in effect so long as reasonably required for the
distribution; provided, however, that the Depositor shall not be required to
qualify to do business in any jurisdiction where it is not qualified on the date
of the related Terms Agreement or to take any action which would subject it to
general or unlimited service of process in any jurisdiction in which it is not,
on the date of the related Terms Agreement, subject to such service of process.
(h) The Depositor will pay all expenses incidental to the performance
of its obligations under this Agreement and any Terms Agreement and will
reimburse each Underwriter for any expenses (including fees and disbursements of
counsel and accountants) incurred by them in connection with qualification of
the Certificates and determination of their eligibility for investment under the
laws of such jurisdictions as you designate and the printing of memoranda
relating thereto, for any fees charged by the nationally recognized statistical
rating agencies for the rating of the Certificates, for the filing fee of the
National Association of Securities Dealers, Inc. relating to the Certificates,
if applicable, and for expenses incurred in distributing the prospectus to the
Underwriters.
(i) During the period when a prospectus is required by law to be
delivered in connection with the sale of the Certificates pursuant to this
Agreement, the Depositor will file or cause to be filed, on a timely and
complete basis, all documents that are required to be filed by the Depositor
with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(j) So long as the Certificates of a Series shall be outstanding, the
Depositor will deliver to you the annual statement of compliance delivered to
the Trustee pursuant to the Pooling and Servicing Agreement and the annual
statement of a firm of independent public accountants furnished to the Trustee
pursuant to the Pooling and Servicing Agreement as soon as such statements are
furnished to the Trustee.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. The several
obligations of each Underwriter named in any Terms Agreement to purchase and pay
for the Certificates 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
applicable Terms Agreement and the applicable Closing Date, to the accuracy of
the statements made in any officers' certificates (each an "Officer's
Certificate") pursuant to the provisions hereof, to the performance by the
Depositor of its obligations hereunder and to the following additional
conditions precedent:
(a) At the time the applicable Terms Agreement is executed,
[__________] and/or any other firm of certified independent public accountants
acceptable to you shall have furnished to you a letter, addressed to you, and in
form and substance satisfactory to you in all respects, stating in effect that
using the assumptions and methodology used by the Depositor, all of which shall
be described in such letter or the Prospectus Supplement, they have recalculated
such numbers, percentages and weighted average lives set forth in the Prospectus
Supplement as you may reasonably request, compared the results of their
calculations to the corresponding items in the Prospectus Supplement, and found
each such number, percentage, and weighted average life set forth in the
Prospectus Supplement to be in agreement with the results of such calculations.
To the extent historical financial delinquency or related information is
included with respect to one or more master servicers, such letter or letters
shall also relate to such information.
(b) At the Closing Date, [__________] and/or any other firm of
certified independent public accountants acceptable to you shall have furnished
to you a letter, addressed to you, and in form and substance satisfactory to you
in all respects, relating to the extent such information is not covered in the
letter or letters provided pursuant to clause (a)(i), to a portion of the
information set forth on the Mortgage Loan Schedule attached to the Pooling and
Servicing Agreement and the characteristics of the mortgage loans, as presented
in the Prospectus Supplement or the Form 8-K relating thereto, or if a letter
relating to the same information is provided to the Trustee, indicating that you
are entitled to rely upon its letter to the Trustee.
(c) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
been any change, or any development involving a prospective change, in or
affecting the business or properties of the Depositor or any of its affiliates
the effect of which, in any case, is, in your judgment, so material and adverse
as to make it impracticable or inadvisable to proceed with the Offering or the
delivery of the Certificates as contemplated by the Registration Statement and
the Prospectus. All actions required to be taken and all filings required to be
made by the Depositor under the Act and the Exchange Act prior to the sale of
the Certificates shall have been duly taken or made; and prior to the applicable
Closing Date, 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 you, shall be
contemplated by the Commission or by any authority administering any state
securities or Blue Sky law.
(d) Unless otherwise specified in any applicable Terms Agreement for a
Series, the Certificates shall be rated in one of the four highest grades by one
or more nationally recognized statistical rating agencies specified in said
Terms Agreement.
(e) You shall have received the opinion of counsel for the Depositor,
dated the applicable Closing Date, substantially to the effect set forth in
Exhibit B attached hereto.
(f) Each opinion also shall relate to such other matters as may be
specified in the related Terms Agreement or as to which you reasonably may
request. In rendering any such opinion, counsel for the Depositor may rely on
certificates of responsible officers of the Depositor, the Trustee, and public
officials or, as to matters of law other than New York or Federal law, on
opinions of other counsel (copies of which opinions shall be delivered to you),
provided that, in cases of opinions of other counsel, counsel for the Depositor
shall include in its opinion a statement of its belief that both it and you are
justified in relying on such opinions.
(g) You shall have received from counsel for the Depositor a letter,
dated as of the Closing Date, stating that you may rely on the opinions
delivered by such firm under the Pooling and Servicing Agreement and to the
rating agency or agencies rating the Certificates as if such opinions were
addressed directly to you (copies of which opinions shall be delivered to you).
(h) You shall have received from counsel for the Underwriters, if such
counsel is different from counsel to the Depositor, such opinion or opinions,
dated as of the Closing Date, with respect to the validity of the Certificates,
the Registration Statement, the Prospectus and other related matters as the
Underwriters may require, and the Depositor shall have furnished to such counsel
such documents as they may have requested from it for the purpose of enabling
them to pass upon such matters.
(i) You shall have received Officer's Certificates signed by such of
the principal executive, financial and accounting officers of the Depositor as
you may request, dated as of the Closing Date, in which such officers, to the
best of their knowledge after reasonable investigation, shall state that the
representations and warranties of the Depositor in this Agreement are true and
correct; that the Depositor has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Date; that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated; that, subsequent to the respective dates as of
which information is given in the Prospectus, and except as set forth or
contemplated in the Prospectus, there has not been any material adverse change
in the general affairs, business, key personnel, capitalization, financial
condition or results of operations of the Depositor; that except as otherwise
stated in the Prospectus, there are no material actions, suits or proceedings
pending before any court or governmental agency, authority or body or, to their
knowledge, threatened, affecting the Depositor or the transactions contemplated
by this Agreement; and that attached thereto are true and correct copies of a
letter or letters from the one or more nationally recognized statistical rating
agencies specified in the applicable Terms Agreement confirming that, unless
otherwise specified in said Terms Agreement, the Certificates have been rated in
one of the four highest grades by each of such agencies and that such rating has
not been lowered since the date of such letter.
The Depositor will furnish you with such conformed copies of such
opinions, certificates, letters and documents as you reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects with respect to a particular Offering
when and as provided in this Agreement and the related Terms Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement and the related Terms Agreement shall not be in all material respects
reasonably satisfactory in form and substance to you, this Agreement (with
respect to the related Offering) and the related Terms Agreement and all
obligations of the Underwriters hereunder (with respect to the related Offering)
and thereunder may be canceled at, or at any time prior to, the related Closing
Date by the Underwriters. Notice of such cancellation shall be given to the
Depositor in writing, or by telephone or telegraph confirmed in writing.
7. INDEMNIFICATION.
(a) The Depositor agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act against
any and all losses, claims, damages, liabilities and expenses whatsoever
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act, or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) (i) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement relating to the applicable Series of Certificates (the "Applicable
Registration Statement") as it became effective or in any amendment or
supplement thereof, or in the Applicable Registration Statement or the related
Prospectus, or in any amendment thereof, or in any static pool information
provided by the Depositor pursuant to Regulation AB Item 1105(a), (b) and (c),
but deemed excluded from the Registration Statement and the Prospectus pursuant
to Regulation AB Item 1105(d), 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 therein not misleading (ii) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Definitive Free Writing Prospectus, or any Issuer
Information contained in any other Free Writing Prospectus, or any omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or (iii) are caused by any untrue statement of a material fact
or alleged untrue statement of a material fact contained in any Free Writing
Prospectus that was caused by any error in any Pool Information; provided,
however, that the Depositor will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission based upon any information with respect to which any Underwriter has
agreed to indemnify the Depositor pursuant to Section 7(b).
(b) Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Depositor, each of the directors of the Depositor, each of
the officers of the Depositor who shall have signed the Applicable Registration
Statement, and each other person, if any, who controls the Depositor within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any losses, claims, damages, liabilities and expenses whatsoever (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon (i) the Underwriter Information, (ii) any
Underwriter Derived Information prepared or used by that Underwriter, (iii) any
Free Writing Prospectus prepared or used by that Underwriter for which the
conditions set forth in Section 4(d)(5) above are not satisfied with respect to
the prior approval by the Depositor, (iv) any portion of any Free Writing
Prospectus (other than the Definitive Free Writing Prospectus) prepared or used
by that Underwriter not constituting Issuer Information, (v) and any liability
directly resulting from that Underwriter's failure to provide any investor with
the Definitive Free Writing Prospectus prior to entering into a Contract of Sale
with such investor or failure to file any Free Writing Prospectus required to be
filed by that Underwriter in accordance with Section 4(f); provided, however,
that the indemnification set forth in this 7(b) shall not apply to the extent of
any error in any Free Writing Prospectus that was caused by any error in any
Pool Information. This indemnity will be in addition to any liability which each
Underwriter may otherwise have. The Depositor acknowledges that, unless
otherwise set forth in the applicable Terms Agreement, the Underwriters'
Information included in the Prospectus Supplement relating to a Series of
Certificates constitute the only information furnished in writing by or on
behalf of any Underwriter expressly for use in the Applicable Registration
Statement or the Prospectus or in any amendment thereof or supplement thereto,
as the case may be furnished to the Depositor by such Underwriter), and each
Underwriter confirms, on its behalf, that such statements are correct.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 7 except to the extent that it has been prejudiced
in any material respect by such failure or from any liability which it may have
otherwise). In case any such action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement of
any claim or action effected without its written consent; provided, however,
that such consent was not unreasonably withheld.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in Section 7 hereof is for any reason held to be
unavailable, on grounds of public policy or otherwise, from the Depositor or the
applicable Underwriter or is insufficient to hold harmless a party indemnified
thereunder, the Depositor and the applicable Underwriter shall contribute to the
aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, claims, damages, liabilities and expenses
suffered by the Depositor any contribution received by the Depositor from
persons, other than the applicable Underwriter, who may also be liable for
contribution, including persons who control the Depositor within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, officers of the
Depositor who signed the Applicable Registration Statement and directors of the
Depositor) to which the Depositor and the applicable Underwriter may be subject
(i) in the case of any losses, claims, damages and liabilities (or actions in
respect thereof) which do not arise out of or are not based upon any untrue
statement or omission of a material fact in any portion of any Free Writing
Prospectus (other than the Definitive Free Writing Prospectus), not constituting
Issuer Information (or any amendments or supplements thereof), in such
proportions as is appropriate to reflect the relative benefits received by the
Depositor on one hand and the applicable Underwriter on the other from the
Offering of the Certificates as to which such loss, liability, claim, damage or
expense is claimed to arise or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in Section 7(c)
hereof, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Depositor on one
hand and the applicable Underwriter on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations
or (ii) in the case of any losses, claims, damages and liabilities (or actions
in respect thereof) which arise out of or are based upon any untrue statement or
omission of a material fact in any portion of any Free Writing Prospectus (other
than the Definitive Free Writing Prospectus) not constituting Issuer Information
(or any amendments or supplements thereof) in such proportion as is appropriate
to reflect the relative fault of the Depositor on the one hand and the
Underwriter that furnished such portion of any Free Writing Prospectus (other
than the Definitive Free Writing Prospectus) not constituting Issuer Information
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof) as
well as any other relevant equitable considerations; provided, however, that in
no case shall such Underwriter be responsible under this subparagraph (ii) for
any amount in excess of the aggregate Purchase Price for the Offered
Certificates.
The relative benefits received by the Depositor on one hand and the
applicable Underwriter on the other shall be deemed to be in the same proportion
as (x) the total proceeds from the Offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Depositor and (y) the
underwriting discounts and commissions received by the applicable Underwriter,
respectively, in each case as set forth in the Terms Agreement in respect of the
Offering of the Certificates as to which such loss, liability, claim, damage or
expense is claimed to arise. The relative fault of the Depositor on one hand and
the applicable Underwriter on the other shall be determined by reference to,
among other things, (A) in the case of clause (i) of the preceding paragraph,
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 on one hand or the applicable Underwriter on the
other, (B) in the case of clause (ii) of the preceding paragraph, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to any untrue statement or omission of
a material fact in any portion of any Free Writing Prospectus (other than the
Definitive Free Writing Prospectus), not constituting Issuer Information (or any
amendments or supplements thereof), and (C) in the case of either clause (i) or
clause (ii) of the preceding paragraph, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Depositor and the applicable Underwriter agree that it would not
be just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 7(d), (x) except as otherwise
provided in Section 7(d)(ii), in no case shall the applicable Underwriter be
liable or responsible for any amount in excess of the underwriting discount set
forth in the Terms Agreement relating to the Certificates as to which such
losses, claims, damages, liabilities or expenses are claimed to arise, and (y)
no person guilty of fraudulent misrepresentation (within the meaning of Section
11 (f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7(d),
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person, if any, who controls the
Depositor within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, each officer of the Depositor who shall have signed the Applicable
Registration Statement and each director of the Depositor shall have the same
rights to contribution as the Depositor, subject in each case to clauses (i) and
(ii) of this Section 7(d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this Section 7(d), notify such party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 7(d) or
otherwise. No party shall be liable for contribution with respect to any action
or claim settled without its consent; provided, however, that such consent was
not unreasonably withheld.
8. UNDERWRITER'S USE OF FREE WRITING PROSPECTUS. Each Underwriter
acknowledges and agrees that, as to any Free Writing Prospectus prepared by any
Underwriter, each non-preparing Underwriter shall not participate in the
planning for the use of such Free Writing Prospectus in any manner. Each
Underwriter acknowledges and agrees that for all purposes of Rule 159A of the
1933 Act Regulations, solely as between it and the other Underwriters, each
respective Underwriter shall be responsible only for: (i) the Definitive Free
Writing Prospectus and any other Free Writing Prospectus prepared by the
Depositor, as used in connection with the offering by such Underwriter to any
investor, (ii) any Free Writing Prospectus prepared by such Underwriter, as used
in connection with the offering by such Underwriter to any investor and (iii)
any Free Writing Prospectus prepared by any other Underwriter, but only to the
extent actually used in connection with the offering by such non-preparing
Underwriter to any investor.
9. DEFAULT OF AN UNDERWRITER. If any Underwriter or Underwriters
participating in an Offering of Certificates default in their obligations to
purchase Certificates hereunder and under the Terms Agreement and the aggregate
purchase price of Certificates which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the aggregate purchase
price of the Certificates then being purchased, you may make arrangements
satisfactory to the Depositor for the purchase of such Certificates by other
persons, including any of the Underwriters, but if no such arrangements are made
by the Closing Date the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective total commitments as set forth in
the applicable Terms Agreement (for all classes of Certificates), to purchase
the Certificates which such defaulting Underwriter or Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so default and the
aggregate purchase price of Certificates with respect to which such default or
defaults occur is more than 10% of the aggregate purchase price of Certificates
then being purchased, and arrangements satisfactory to you and the Depositor for
the purchase of such Certificates by other persons are not made within 36 hours
after such default, the Terms Agreement as to which such offering relates will
terminate without liability on the part of any non-defaulting Underwriter or the
Depositor, except as provided in Section 11. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
10. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties, and other
statements of the Depositor or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the result thereof,
made by or on behalf of any Underwriter or the Depositor or any of its officers
or directors or any controlling person, and will survive delivery of and payment
for the Certificates and any termination of this Agreement or any Terms
Agreement, including any termination pursuant to Section 10.
11. TERMINATION. You shall have the right to terminate any Terms
Agreement at any time prior to the applicable Closing Date if any domestic or
international event or act or occurrence has materially disrupted, or in your
opinion will in the immediate future materially disrupt, securities markets; or
if trading on the New York or American Stock Exchanges shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required on the New
York or American Stock Exchanges by the New York or American Stock Exchanges or
by order of the Commission or any other governmental authority having
jurisdiction; or if the United States shall have become involved in a war or
major hostilities; or if a banking moratorium has been declared by a state or
Federal authority, or if a banking moratorium in foreign exchange trading by
major international banks or persons has been declared; or if any new
restriction materially and adversely affecting the distribution of the series of
Certificates as to which such Terms Agreement relates shall have become
effective; or if there shall have been such change in the market for securities
in general or in political, financial or economic conditions as in your judgment
would be so materially adverse as to make it inadvisable to proceed with the
Offering, sale and delivery of the Series of Certificates as to which such Terms
Agreement relates on the terms contemplated in such Terms Agreement. Any notice
of termination pursuant to this Section 12 shall be by telephone, telex, or
telegraph, confirmed in writing by letter.
12. NOTICES. All communications hereunder will be in writing, and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to you at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General
Counsel or if sent to the Depositor, will be mailed, delivered or telegraphed
and confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; provided, however, that any notice to an Underwriter pursuant
to Section 7 will be mailed, delivered or telegraphed to such Underwriter at the
address furnished by it.
13. SUCCESSORS. This Agreement and the Terms Agreement will inure to
the benefit of and be binding upon the parties hereto and thereto, and their
respective successors and the officers and directors and controlling persons
referred to in Section 7, and no other person will have any right or obligation
hereunder or thereunder.
14. REPRESENTATION OF UNDERWRITERS. You will act for the several
Underwriters in connection with each Offering of Certificates governed by this
Agreement, and any action under this Agreement and any Terms Agreement taken by
you will be binding upon all the Underwriters identified in such Terms
Agreement.
15. CONSTRUCTION. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Depositor and the several
Underwriters in accordance with its terms.
Very truly yours,
STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC.
By:
____________________________________
Name:
Title:
The foregoing Underwriting Agreement
hereby is confirmed and accepted as
of the date first above written.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:
___________________________________
Name:
Title:
SCHEDULE I (FOR MULTIPLE UNDERWRITERS)
Underwriters
NAME CLASS CLASS CLASS CLASS CLASS
---- ----- ----- ----- ----- -----
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $ $ $ $ $
[Other Underwriters]
Total
EXHIBIT A
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
_______________ Trust 20__-_
Mortgage Pass-Through Certificates, Series 20__-_
TERMS AGREEMENT
Dated: as of _____ __, 20__
To: STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
Re: Underwriting Agreement dated ___________, 20__
Underwriter: Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Series Designation: Series 20__-_
Class Designation Schedule of the Certificates:
TERMS OF THE CERTIFICATES:
CLASS ORIGINAL PRINCIPAL AMOUNT INTEREST RATE
$[__________]
$[__________]
$[__________]
$[__________]
$[__________]
$[__________]
$[__________]
$[__________]
$[__________]
$[__________]
$[__________]
$[__________]
The Certificates purchased by the Underwriter will be offered from time to time
by the Underwriter in negotiated transactions at varying prices to be determined
at the time of sale.
DEFINED TERMS: Terms not otherwise defined herein shall have the meanings given
to such terms in the Pooling and Servicing Agreement dated as of ______ _, 20__
among Structured Asset Mortgage Investments II Inc., as depositor,
_______________ as master servicer and securities administrator, EMC Mortgage
Corporation, as sponsor and Depositor and _________________, as trustee.
FORM OF CERTIFICATES BEING PURCHASED BY THE UNDERWRITER: Book-Entry except for
the _________________ Certificates which will be in certificated, fully
registered form.
DISTRIBUTION DATES: The[25th] day of each month or, if such [25th] day is not a
business day, the next succeeding __________________ business day beginning on
__________, 20__
CERTIFICATE RATING FOR THE CERTIFICATES BEING PURCHASED BY THE UNDERWRITER:
CLASS RATINGS
S&P ▇▇▇▇▇'▇ Fitch
MORTGAGE ASSETS: THE MORTGAGE LOANS TO BE INCLUDED IN THE TRUST FUND ARE AS
DESCRIBED IN ANNEX A HERETO.
PURCHASE PRICE: THE AGGREGATE PURCHASE PRICE PAYABLE BY THE UNDERWRITER FOR THE
CERTIFICATES COVERED BY THIS AGREEMENT WILL BE $____________ (PLUS
$_____________ IN ACCRUED INTEREST).
CREDIT ENHANCEMENT: NONE OTHER THAN ________________________ DESCRIBED IN THE
RELATED PROSPECTUS SUPPLEMENT.
CLOSING DATE: _______ ___, 20__
THE UNDERSIGNED, AS THE UNDERWRITER, AGREES, SUBJECT TO THE TERMS AND
PROVISIONS OF THE ABOVE-REFERENCED UNDERWRITING AGREEMENT, WHICH IS INCORPORATED
HEREIN IN ITS ENTIRETY AND MADE A PART HEREOF, TO PURCHASE THE RESPECTIVE
PRINCIPAL AMOUNTS OF THE CLASSES OF THE ABOVE-REFERENCED SERIES OF CERTIFICATES
AS SET FORTH HEREIN.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
BY: __________________________________
NAME:
TITLE:
ACCEPTED:
STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC.
BY: __________________________________
NAME:
TITLE:
ANNEX A
MORTGAGE LOAN SCHEDULE
[AVAILABLE UPON REQUEST]
EXHIBIT B
Closing Opinion of Counsel to the Depositor
Please See Tab #[__] for Attachment
EXHIBIT C
FOOTNOTE 271 INFORMATION
[Excerpt from Offering Reform adopting release-bold headings added for
convenience of reference]
In the case of asset-backed issuers certain information comprehended within the
definition of ABS informational and computational material is analogous to the
term of securities and is therefore issuer information. For example, we would
expect that the following categories of such material, which are derived from
the definition of ABS informational and computational materials, are generally
issuer information:
(1) STRUCTURAL INFORMATION-factual information regarding the asset-backed
securities being offered and the structure and basic parameters of the
securities, such as the number of classes, seniority, payment priorities, terms
of payment, the tax, ERISA or other legal conclusions of counsel, and
descriptive information relating to each class (e.g., principal amount, coupon,
minimum denomination, price or anticipated price, yield, weighted average life,
credit enhancements, anticipated ratings, and other similar information relating
to the proposed structure of the offering);
(2) COLLATERAL INFORMATION-factual information regarding the pool assets
underlying the asset-backed securities, including origination, acquisition and
pool selection criteria, information regarding any prefunding or revolving
period applicable to the offering, information regarding significant obligors,
data regarding the contractual and related characteristics of the underlying
pool assets (e.g., weighted average coupon, weighted average maturity,
delinquency and loss information and geographic distribution) and other factual
information concerning the parameters of the asset pool appropriate to the
nature of the underlying assets, such as the type of assets comprising the pool
and the programs under which the loans were originated;
(3) KEY PARTIES INFORMATION-identification of key parties to the
transaction, such as servicers, trustees, depositors, sponsors, originators and
providers of credit enhancement or other support, including information about
any such party;
(4) STATIC POOL DATA-static pool data, as referenced in Item 1105 of
Regulation AB [17 CFR 229.1105], such as for the sponsor's and/or servicer's
portfolio, prior transactions or the asset pool itself; and
(5) ISSUER COMPUTATIONAL MATERIAL-to the extent that the information is
provided by the issuer, depositor, affiliated depositor, or sponsor, statistical
information displaying for a particular class of asset-backed securities the
yield, average life, expected maturity, interest rate sensitivity, cash flow
characteristics, total rate of return, option adjusted spread or other financial
or statistical information related to the class or classes under specified
prepayment, interest rate, loss or other hypothetical scenarios. (Where such
information is prepared by an underwriter or dealer, it is not issuer
information, even when derived from issuer information.)