HSI ASSET SECURITIZATION CORPORATION (Approximate) Mortgage Loan Trust 200[ ]- [ ] Mortgage Pass-Through Certificates, Series 200[ ] - [ ] UNDERWRITING AGREEMENT
$[
]
(Approximate)
Mortgage
Loan Trust 200[ ]- [ ]
Mortgage
Pass-Through Certificates, Series 200[ ] - [ ]
[
]
HSBC
Securities (USA) Inc.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
New
York,
NY 10018
Ladies
and Gentlemen:
Section
1. Introduction.
HSI
Asset Securitization Corporation, a Delaware corporation (the “Company”),
proposes to cause to be issued by [ ]Mortgage Loan Trust 200[ ]-[ ], a common
law trust governed by New York law (the “Issuing Entity”), Mortgage Pass-Through
Certificates, Series 200[-[ ] (the “Certificates”),
consisting of [ ] classes pursuant to a Pooling and Servicing Agreement,
dated
as of [ ] (the “Pooling
and Servicing Agreement”),
by
and among the Company, [ ], as servicer (the “Servicer”), [ ], as mortgage loan
seller (the “Mortgage Loan Seller”), ▇▇▇▇▇ Fargo Bank, National Association, in
its capacity as master servicer, securities administrator and custodian (“▇▇▇▇▇
Fargo”), and Deutsche Bank National Trust Company, as trustee (the “Trustee”).
The
Company proposes to sell the [ ] (the “Offered
Certificates”)
to
HSBC Securities (USA) Inc. (“HSBC
Securities”
or
the
“Representative”) and the co-managers identified on Exhibit
A
hereto,
if any, (collectively with HSBC Securities, the “Underwriters” and, each entity
individually, an “Underwriter”) pursuant to this agreement (“Agreement”).
The
Certificates will represent in the aggregate the entire beneficial ownership
interest in a trust fund (the “Trust
Fund”)
created pursuant to the Pooling and Servicing Agreement primarily consisting
of
[ ] mortgage loans (the “Mortgage Loans”) secured by [first]-lien mortgages or
deeds of trust on residential properties. The Mortgage Loans will be purchased
by the Company from HSBC Bank USA, National Association (“HSBC Bank” or the
“Sponsor”) pursuant to the Mortgage Loan Purchase Agreement, dated as of [ ]
(the “Mortgage Loan Purchase
Agreement”),
by
and between the Company and the Sponsor, in exchange for immediately available
funds. The Pooling and Servicing Agreement, the Mortgage Loan Purchase
Agreement, the various indemnification agreements entered into with the
Servicer, ▇▇▇▇▇ Fargo, in its capacity as master servicer (the “Master
Servicer”) and securities administrator (the “Securities Administrator”), the
Mortgage Loan Seller and [ ], as swap counterparty (the “Swap Counterparty”)
under an interest rate swap agreement (the “Interest Rate Swap Agreement”),
dated [ ], between the Securities Administrator on behalf of the Trust Fund
and
the Swap Counterparty (collectively, the “Indemnification Agreements”) and this
Agreement are collectively referred to herein as the “Transaction Documents.”
Only the Offered Certificates are being sold pursuant to this
Agreement.
Section
2. Representations
and Warranties of the Company.
The
Company represents and warrants to the Underwriters as of the date hereof
and as
of the Closing Date:
(i) A
registration statement (No. 333-124032) on Form S-3 for the registration
under
the Securities Act of 1933, as amended (the “Securities Act”), of Mortgage
Pass-Through Certificates (issuable in series), including the Offered
Certificates, has been filed with the Securities and Exchange Commission
(the
“Commission”) under the Securities Act and has been declared effective by the
Commission and is effective as of the date hereof. The “Registration Statement”
shall mean the registration statement as of the date it was first declared
effective by the Commission (the “Initial Effective Date”), as modified,
supplemented or amended up to and including the Effective Date by any
post-effective amendment, the base prospectus dated [ ] (the “Base Prospectus”),
the prospectus supplement to the Base Prospectus to be dated on or about
the
Closing Date in the form to be filed with the Commission pursuant to Rule
424(b)
under the Securities Act (the “Prospectus Supplement” and, together with the
Base Prospectus, the “Prospectus”), any filings made under the Securities
Exchange Act of 1934, as amended (“Exchange Act”) and incorporated by reference
in the Base Prospectus or the Prospectus Supplement, and any amendment or
supplement to any of the foregoing. “Effective Date” shall mean the most recent
date as of which Registration Statement was declared effective by the
Commission, or any later effective date determined pursuant to Rule 430(B)(f)(2)
under the Securities Act. The
“Preliminary Disclosure Package” shall mean the free writing prospectus within
the meaning of Rule 405 under the Securities Act (a “Free Writing Prospectus”)
that contains substantially all information that is expected to appear in
the
Prospectus Supplement (the “Preliminary Prospectus Supplement”), together with
the Base Prospectus. The Commission has not issued any order preventing or
suspending the use of the Prospectus or the Preliminary Disclosure Package
or
the effectiveness of the Registration Statement and no proceedings for such
purpose are pending or, to the Company’s knowledge, threatened by the
Commission. The Initial Effective Date was no more than three years before
the
Closing Date (or, if three years or more but less than three years and six
months, the Company filed another registration statement on Form S-3 for
the
registration under the Securities Act of Mortgage Pass-Through Certificates
(issuable in series) before three years from the Initial Effective Date and
such
new registration statement meets the requirements of Rule 415(a)(6) under
the
Securities Act). The
conditions for use of Form S-3 for the Registration Statement have been
satisfied with respect to the Company.
(ii) The
Registration Statement and Prospectus conform, and any further amendments
or
supplements thereto will conform, as of the Effective Date or when filed
with
the Commission, as applicable, to the requirements of the Securities Act
and the
rules and regulations thereunder (the “Securities Act Regulations”) (or, with
regard to Exchange Act filings incorporated by reference therein, to the
requirements of the Exchange Act and the rules and regulations thereunder),
in
all material respects. As of the Effective Date, the Registration Statement
does
not contain 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. The Prospectus, as of its date and as amended and
supplemented as of the Closing Date, taken together with the static pool
data
(within the meaning of Item 1105 of Regulation AB) set forth in or referred
to
in the
Prospectus but deemed to be excluded from the Registration Statement and
Prospectus pursuant to Item 1105(d) of Regulation AB (the “Designated Static
Pool Information”),
does
not and will not contain an 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. The Preliminary
Disclosure Package, as of its date, does 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. Notwithstanding the foregoing, the Company makes no
representations or warranties as to information contained in or omitted from
the
Registration Statement, the Prospectus or the Preliminary Disclosure Package
in
reliance and conformity with any information set forth on Exhibit
B
hereto
(the “Underwriter Information”). The Company acknowledges that the Underwriter
Information constitutes the only information furnished in writing by the
Underwriters or on their behalf for use in connection with the preparation
of
the Registration Statement, the Prospectus or the Preliminary Disclosure
Package, and the Underwriters confirm that the Underwriter Information is
correct.
2
(iii) Since
the
respective dates as to which information is given in the Prospectus, there
has
been no material adverse change in the condition, financial or otherwise,
or in
the earnings, business affairs or business prospects of the Company or the
Sponsor, whether or not arising in the ordinary course of business.
(iv) The
execution, delivery and performance by the Company of the Transaction Documents
to which it is a party, the consummation of the transactions contemplated
hereby
and thereby, and the issuance of the Offered Certificates will not conflict
with
or constitute a breach of, or default under, or result in the creation or
imposition of any lien, mortgage, pledge, charge, encumbrance, adverse claim
or
other security interest (a “Lien”) upon any property or assets of the Company
pursuant to, any material contract, indenture, mortgage, loan agreement,
note,
lease or other instrument to which the Company is a party or by which it
may be
bound, or to which any of the property or assets of the Company is subject,
nor
will such action result in any violation of the provisions of the charter
or
by-laws of the Company or any applicable law, administrative rule or regulation
or administrative or court decree, except for such conflicts, breaches,
defaults, Liens or violations that would not, individually or in the aggregate,
materially and adversely affect the Company or the transactions contemplated
hereby.
(v) The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware and is duly qualified
as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which the failure to be so qualified would have a material
and
adverse effect on the Company’s ability to perform its obligations hereunder or
under any Transaction Document to which the Company is a party. The Company
has
all corporate power and authority to own, lease and operate its properties
and
to conduct its business, as now conducted by it, and to enter into and perform
its obligations under the Transaction Documents to which it is a party and
to
cause the Offered Certificates to be issued.
(vi) Except
as
disclosed in each of the Preliminary Disclosure Package and the Prospectus,
there are no actions, suits or proceedings pending with respect to which
the
Company has received service of process before or, the best of the Company’s
knowledge, threatened by any court or governmental agency or body, domestic
or
foreign, to which the Company is a party or of which any of its properties
is
the subject (a) which if determined adversely to the Company would have a
material adverse effect on the business or financial condition of the Company,
(b) asserting the invalidity of any of the Transaction Documents or the Offered
Certificates, (c) seeking to prevent the issuance of the Offered Certificates
or
the consummation by the Company of any of the transactions contemplated by
any
of the Transaction Documents or (d) which might materially and adversely
affect
the performance by the Company of its obligations under, or the validity
or
enforceability of any of the Transaction Documents or the Offered Certificates.
3
(vii) No
authorization, approval, consent, order, registration or qualification of
or
with any court or governmental agency or body of the United States is necessary
in connection with the issuance or sale of the Offered Certificates hereunder
or
the consummation by the Company of the other transactions contemplated by
the
Transaction Documents, except (a) such as have been, or as of the Closing
Date
will have been, obtained, (b) such as may otherwise be required under applicable
state securities laws in connection with the purchase and offer and distribution
of the Offered Certificates by the Underwriters, and (c) those for which
the
failure to obtain them would not, individually or in the aggregate, materially
and adversely affect the Company or the transactions contemplated hereby
or by
the Transaction Documents.
(viii) This
Agreement has been, and each of the other Transaction Documents to which
the
Company is a party, when executed and delivered as contemplated hereby and
thereby will have been, duly authorized, executed and delivered by the Company,
and this Agreement constitutes, and each of such other Transaction Documents,
when executed and delivered as contemplated herein, will constitute, a legal,
valid and binding instrument enforceable against the Company in accordance
with
its terms, except as enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar laws
affecting the enforcement of the rights of creditors generally, (b) general
principles of equity, whether enforcement is sought in a proceeding in equity
or
at law, and (c) public policy considerations underlying the securities
laws, to the extent that such public policy considerations limit the
enforceability of the provisions of such Transaction Documents that purport
to
provide indemnification from securities law liabilities.
(ix) At
the
time of the execution and delivery of the Pooling and Servicing Agreement,
the
Company will (a) have equitable title to the interest in the Mortgage Loans
conveyed by the Sponsor, free of any Lien, (b) not have assigned to any person
(other than the Trustee) any of its right, title or interest in the Mortgage
Loans, and (c) have the power and authority to transfer 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
the
Company’s right, 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 Lien.
(x) Any
taxes, fees and other governmental charges in connection with the execution,
delivery and issuance of the Transaction Documents to which it is a party
and
the Offered Certificates have been paid or will be paid at or prior to the
Closing Date.
(xi) The
direction by the Company to ▇▇▇▇▇ Fargo, as Securities Administrator, to
execute, authenticate, issue and deliver the Offered Certificates has been
duly
authorized by the Company, and, assuming the Securities Administrator has
been
duly authorized to undertake such actions, when executed, authenticated,
issued
and delivered by the Securities Administrator in accordance with the Pooling
and
Servicing Agreement, the Offered Certificates will be validly issued and
outstanding and the holders of the Offered Certificates will be entitled
to the
rights and benefits of the Offered Certificates as provided by the Pooling
and
Servicing Agreement.
4
(xii) Each
of
the Mortgage Loans will meet the eligibility criteria as of the relevant
cut-off
date as described in the Preliminary Disclosure Package and Prospectus and
will
conform to the descriptions thereof contained therein.
(xiii) As
of [],
the Company was not an “ineligible issuer” as defined in Rule 405 under the
Securities Act.
(xiv) Neither
the Company nor the Trust is an “investment company” within the meaning of such
term under the Investment Company Act of 1940, as amended and the rules and
regulations thereunder.
(xv) The
Offered Certificates and the Pooling and Servicing Agreement will conform
in all
material respects to the descriptions thereof contained in the Preliminary
Disclosure Package and the Prospectus.
(xvi) Any
certificate signed by any officer of the Company and delivered to the
Representative or its counsel shall be deemed a representation and warranty
by
the Company to each of the Underwriters as to the matters covered
thereby.
Section
3. Purchase,
Sale and Delivery of Offered Certificates.
Subject
to the terms and conditions set forth herein and in reliance upon the
representations and warranties set forth herein, the Company agrees to instruct
the Trustee to issue the Certificates and to sell to each Underwriter, and
each
Underwriter severally and not jointly agrees to purchase from the Company
the
Offered Certificates set forth opposite their names in Exhibit
A,
except
that the amounts purchased by the Underwriters may change in accordance with
Section 11 of this Agreement. Payment of the purchase price for, and delivery
of, the Offered Certificates to be purchased by the Underwriters shall be
made
at the office of HSBC Securities, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or
at
such other place as shall be agreed upon by the Representative and the Company,
at 10:00 A.M. New York City time, on [ ], which date and time may be postponed
by agreement between the Representative and the Company (such time and date
of
payment and delivery being herein called the “Closing
Date”).
Payment shall be made to the Company in immediately available federal funds
wired to such bank as may be designated by the Company, against delivery
of the
Offered Certificates or, at the Company’s option, in whole or in part, by
appropriate notation of an intercompany transfer between affiliates of HSBC
Securities. 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 Publicly-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 Representative not later than 10:00 A.M. on the last Business
Day (as defined below) prior to the Closing Date.
5
Section
4. Offering
by the Underwriters.
Each
Underwriter severally represents, warrants and covenants as
follows:
(i) Each
Underwriter shall offer and/or solicit offers for the Offered Certificates
for
sale to the public as set forth in the Prospectus and agrees that all offers,
solicitations and sales shall be made in compliance with all applicable laws
and
regulations. Furthermore,
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
Securities Act Regulations.
(ii) Unless
preceded or accompanied by the Prospectus, no Underwriter may convey or deliver
any written communication (within the meaning of Rule 405 under the Securities
Act) to any person in connection with the offering of the Offered Certificates,
unless such written communication: (a) is made in reliance on Rule 134 under
the
Securities Act; (b) is the Prospectus; (c) is the Preliminary Disclosure
Package; (d) is an Issuer Free Writing Prospectus; (e) is an Underwriter
Free
Writing Prospectus that contains only subscription information regarding
the
Offered Certificates, Approved Issuer Information, and information that would
be
ABS ICM (which, to the extent it constitutes Issuer Information, also must
be
Approved Issuer Information), and is not distributed “in a manner reasonably
designed to lead to its broad unrestricted dissemination” within the meaning of
Rule 433(d)(ii) under the Securities Act; or (f) is a written confirmation
of
sale or a notice of allocation of securities sold or to be sold made in reliance
on Rule 172 under the Securities Act. “Issuer
Free Writing Prospectus” means a Free Writing Prospectus that is an issuer free
writing prospectus, within the meaning of Rule 433(h)(1) under the Securities
Act, prepared by or on behalf of, or used or referred to by, the Company
or the
Sponsor with respect to the Offered Certificates. “Underwriter
Free Writing Prospectus” means a Free Writing Prospectus prepared by or on
behalf of an Underwriter with respect to the Offered Certificates that is
not an
Issuer Free Writing Prospectus. “ABS ICM” means “ABS informational and
computational materials” with the meaning of Item 1101(a) of Regulation AB.
“Issuer
Information” means issuer information, within the meaning set forth in Rule
433(h)(2) under the Securities Act, with respect to the Offered Certificates,
and includes, without limitation, the information with respect to the Offered
Certificates specified in footnote 271 of Commission Release No. 33-8591
(Securities Offering Reform). “Approved Issuer Information” has the meaning set
forth in Section 4(iii) below. No
Underwriter will disseminate any written communication relating to the Offered
Certificates in reliance on Rule 167 or 426 under the Securities
Act.
(iii) No
Underwriter shall include any Issuer Information in any Underwriter Free
Writing
Prospectus with respect to the Offered Certificates unless the Issuer
Information was provided by the Company expressly for inclusion therein,
or such
Underwriter or the Representative has obtained the prior consent of the Company
to the use of that Issuer Information in that Underwriter Free Writing
Prospectus (any such Issuer Information, “Approved Issuer Information”). At
least [] Business Days before it uses any Underwriter Free Writing Prospectus
containing any Issuer Information, an Underwriter shall notify the Company
of
its intended use thereof and of the intended date of first use, and at the
same
time shall provide to the Issuer a copy of the Issuer Information to the
extent
it was not provided by the Company expressly for inclusion therein. The
Underwriter shall, with its notice, include a copy of that Issuer Information
in
a standard electronic format, unless the Issuer Information was accurately
extracted from the Preliminary Disclosure Package, the Prospectus or an Issuer
Free Writing Prospectus, or from another Underwriter Free Writing Prospectus
where the Issuer Information previously was timely provided in electronic
format
(any such Issuer Information, “Extracted Issuer Information”).
The
Underwriter will not use an Underwriter Free Writing Prospectus containing
Issuer Information before the intended date of first use specified in its
notice
to the Company.
6
(iv) Each
Underwriter acknowledges and agrees that it will not enter into a contract
of
sale within the meaning contemplated by Rule
159
under the Securities Act (a “Contract of Sale”)
with an
investor for any Offered Certificates until the Preliminary Disclosure Package
has been conveyed to such investor.
(v) After
the
final Prospectus is available, no Underwriter shall distribute any written
information concerning the Offered Certificates to a prospective investor
unless
such information is preceded or accompanied by the final
Prospectus.
(vi) Each
Underwriter acknowledges and agrees that all information provided by it 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 to be an Underwriter
Free Writing Prospectus of that Underwriter.
(vii) 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 Securities
Act Regulations
with
respect to the generation and use of Free
Writing Prospectuses
in
connection with the offering of the Offered Certificates.
In
addition, each Underwriter shall maintain written and/or electronic records
of
the following for a period of at least three years after the date
thereof:
(a) a
copy of
any Underwriter Free Writing Prospectus by that Underwriter to solicit offers
to
purchase the Offered Certificates;
(b) regarding
each Free Writing Prospectus delivered by that Underwriter to a potential
investor (including the Preliminary Disclosure Package), the date of such
delivery and identity of such investor; and
(c) regarding
each Contract of Sale entered into by such Underwriter, the date, identity
of
the investor and the terms of such Contract of Sale, as set forth in the
related
confirmation of trade.
(viii) Each
Underwriter further agrees that, if any confirmation of trade with respect
to
any sale of the Offered Certificates is not preceded or accompanied by the
Final
Prospectus, (a) that Underwriter will include in the confirmation 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 the Underwriter, and (b) if copy of the Prospectus is requested
by a person who receives such a confirmation, the Underwriter will appropriately
deliver a copy of the Prospectus to that person. If an electronic copy of
the
Prospectus is delivered by an Underwriter for this or any other any purpose,
such copy shall be the same electronic file containing the Prospectus in
the
identical form transmitted electronically to such Underwriter by or on behalf
of
the Company specifically for use by that Underwriter.
7
(ix) In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive 2001/34/EC (each, a “Relevant Member
State”), with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the “Relevant
Implementation Date”), each Underwriter represents, warrants and covenants that
it has not made and will not make an offer of Offered Certificates to the
public
in that Relevant Member State prior to the publication of a prospectus in
relation to the Offered Certificates which has been approved by the competent
authority in that Relevant Member State or, where appropriate, approved in
another Relevant Member State and notified to the competent authority in
that
Relevant Member State, all in accordance with the Prospectus Directive, except
that it may, with effect from and including the Relevant Implementation Date,
make an offer of certificates to the public in that Relevant Member State
at any
time.
(a) to
legal
entities which are authorized or regulated to operate in the financial markets
or, if not so authorized or regulated, whose corporate purpose is solely
to
invest in securities;
(b) to
any
legal entity which has two or more of (1) an average of at least 250 employees
during the last financial year; (2) a total balance sheet of more than
€43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in
its last annual or consolidated accounts; or
(c) in
any
other circumstances which do not require the publication by the Trust Fund
of a
prospectus pursuant to Article 3 of the Prospectus Directive.
For
the
purposes of this provision, the expression an “offer of certificates to the
public” in relation to any Publicly-Offered Certificates in any Relevant Member
State means the communication in any form and by any means of sufficient
information on the terms of the offer and the Publicly-Offered Certificates
to
be offered so as to enable an investor to decide to purchase or subscribe
the
Publicly-Offered Certificates, as the same may be varied in that Member State
by
any measure implementing the Prospectus Directive in that Member State and
the
expression “Prospectus Directive” means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
(x) Each
Underwriter represents, warrants and covenants that:
(a) It
has
not offered or sold and will not offer or sell any Offered Certificates to
persons in the United Kingdom prior to the expiration of the period of six
months from the issue date of the Publicly-Offered Certificates except to
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments, as principal or agent, for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not
result in an offer to the public in the United Kingdom within the meaning
of the
Public Offers of Securities Regulations 1995, as amended;
8
(b) it
has
only communicated or caused to be communicated and will only communicate
or
cause to be communicated any invitation or inducement to engage in investment
activity, within the meaning of section 21 of the Financial Services and
Markets
Act 2000 (the “FSMA”), received by it in connection with the issue or sale of
any Offered Certificates in circumstances in which section 21(1) of the FSMA
does not apply to the Trust Fund; and
(c) it
has
complied and will comply with all applicable provisions of the FSMA with
respect
to anything done by it in relation to the Offered Certificates in, from or
otherwise involving the United Kingdom.
Section
5. Covenants
of the Company.
The
Company covenants with each of the Underwriters as follows:
(i) The
Company shall: (a) prepare the Preliminary Prospectus Supplement for the
Preliminary Disclosure Package after the final terms of all classes of the
Offered Certificates are established; (b) prepare the Prospectus (including
the
Prospectus Supplement) in a form approved by the Underwriters, and shall
file
such Prospectus pursuant to Rule 424(b)(2) under the Securities Act not later
than the close of business on the second Business Day following the availability
of the Prospectus to the Underwriters; (c) make no further amendment or any
supplement to the Registration Statement or to the Prospectus prior to the
Closing Date except as permitted herein; (d) advise the Underwriters, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective prior to the
termination of the offering of the Offered Certificates or any supplement
to the
Prospectus or any amended Prospectus has been filed and furnish the Underwriters
or their counsel with copies thereof without charge; (e) promptly advise
the
Underwriters of its receipt of notice of the issuance by the Commission of
any
stop order or the institution of or, to the knowledge of the Company, the
threatening of any proceeding for such purpose, of: (1) any order preventing
or
suspending the use of the Prospectus; (2) the suspension of the qualification
of
the Offered Certificates for offering or sale in any jurisdiction; (3) the
initiation of, or threat of, any proceeding for any such purpose or (4) any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus for additional information. In the event of the
issuance of any stop order or of any order preventing or suspending the use
of
the Prospectus or suspending any such qualification, the Company promptly
shall
use its best efforts to obtain the withdrawal of such order by the
Commission.
(ii) 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, the Company shall file promptly with the Commission any amendment
to
the Registration Statement, the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company 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 7.
9
(iii) The
Company shall furnish the Underwriters, prior to filing with the Commission,
and
shall obtain the consent of the Underwriters for the filing of, the following
documents to the extent that they relate to the Offered Certificates: (a)
any
post-effective amendment to the Registration Statement or supplement to the
Prospectus, or document incorporated by reference in the Prospectus, and
(b) any
prospectus pursuant to Rule 424 of the Securities Act Regulations. 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, the
Exchange Act the Securities Act Regulations or the rules and regulations
under
the Exchange Act, the Company 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 Certificates
at any time nine months or more after the Closing Date, upon the request
of the
Underwriters but at their expense, the Company 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) The
Company will furnish to the Underwriters, without charge, a copy of the
Registration Statement (including exhibits thereto) and, so long as delivery
of
a prospectus by an underwriter or dealer may be required by the Securities
Act,
as many copies of the Prospectus, any documents incorporated by reference
therein and any amendments and supplements thereto as any Underwriter may
reasonably request.
(v) So
long
as the Offered Certificates are outstanding, the Company shall cause the
Trustee, pursuant to the Pooling and Servicing Agreement, to generate the
following statements, and shall deliver copies of any such statement to any
Underwriter promptly upon such Underwriter’s request: (a) the annual statement
as to compliance delivered to the Trustee pursuant to Section [] thereof,
(b)
the annual statement of a firm of independent public accountants furnished
to
the Trustee pursuant to Section [] thereof, (c) the monthly servicing report
furnished to the Trustee pursuant to Section [] thereof, and (d) the monthly
reports furnished to the Certificateholders pursuant to Section []
thereof.
(vi) The
Company will use commercially reasonable efforts to arrange for the
qualification of the Offered Certificates for sale under the laws of such
jurisdictions as the Representative may reasonably designate and to maintain
such qualification in effect so long as required for the distribution of
the
Offered Certificates.
The
Company will file or cause the filing of such statements and reports as may
be
required by the laws of each such jurisdiction; provided,
however,
that
the Company shall not be required to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject
it to
general or unlimited service of process in any jurisdiction where it is not
now
so subject.
10
(vii) The
Company shall timely file any Issuer Free Writing Prospectus (including the
Preliminary Prospectus Supplement contained in the Preliminary Disclosure
Package) as and to the extent required by Rule 433(d) under the Securities
Act.
If any Underwriter has timely notified the Company and provided it with Issuer
Information included in an Underwriter Free Writing Prospectus as and to
the
extent required by Section 4(iii) above, the Company shall timely file that
Issuer Information as and to the extent required by Rule 433(d) under the
Securities Act.
Section
6. Additional
Covenants of the Underwriters and the Company.
The
Company and the Underwriters further covenant as follows:
(i) The
first
legend set forth below shall appear on every Free Writing Prospectus (including
the Preliminary Prospectus Supplement) used in connection with the offering
of
the Offered Certificates. The second legend set forth below shall appear
on
every Free Writing Prospectus (other than the Preliminary Prospectus Supplement)
used in connection with the offering of the Offered Certificates prior to
a
Contract of Sale with the relevant investor. The third legend set forth below
shall appear on every Underwriter Free Writing Prospectus used in connection
with the offering of the Offered Certificates prior to a Contract of Sale
with
the relevant investor. The fourth legend set forth below shall appear on
every
Underwriter Free Writing Prospectus used in connection with the offering
of the
Offered Certificates prior to a Contract of Sale and containing information
relating to the Offered Certificates of the type specified in paragraph (5)
of
the definition of ABS ICM (“Derived Information”):
The
Issuer has filed a registration statement (including a prospectus) with the
Securities and Exchange Commission (“SEC”) for the offering to which this
communication relates. Before you invest, you should read the prospectus
in the
registration statement and other documents the Issuer has filed with the
SEC for
more complete information about the Issuer and this offering. You may get
these
documents for free by visiting ▇▇▇▇▇ on the SEC website at ▇▇▇.▇▇▇.▇▇▇.
Alternatively, the Issuer, any underwriter or any dealer participating in
the
offering will arrange to send you the prospectus if you request it by calling
toll-free ▇▇▇-▇▇▇-▇▇▇▇.
The
information in this free writing prospectus, if conveyed prior to the time
of
your contractual commitment to purchase any of the securities described herein,
supersedes any information contained in any prior similar material related
to
these securities. The information in this free writing prospectus is
preliminary, and is subject to completion or change. This free writing
prospectus does not contain all information that is required to be included
in
the base prospectus and the prospectus supplement.
The
securities referred to herein are being sold when, as and if issued. The
issuer
is not obligated to issue such securities or any similar security and the
underwriters’ obligation to deliver such securities is subject to the terms and
conditions of the underwriting agreement with the issuer and the availability
of
such securities when, as and if issued by the issuer. You are advised that
the
terms of the securities, and the characteristics of the mortgage loan pool
backing them, may change (due, among other things, to the possibility that
mortgage loans that comprise the pool may become delinquent or defaulted
or may
be removed or replaced and that similar or different mortgage loans may be
added
to the pool, and that one or more classes of securities may be split, combined
or eliminated), at any time prior to issuance or availability of a final
prospectus. You are advised that securities may not be issued that have the
characteristics described in these materials. The underwriter’s obligation to
sell such securities to you is conditioned on the mortgage loans and securities
having the characteristics described in these materials. If for any reason
the
issuer does not deliver such securities, the underwriter will notify you,
and
neither the issuer nor any underwriter will have any obligation to you to
deliver all or any portion of the securities 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.
11
The
information in this free writing prospectus may be based on preliminary
assumptions about the mortgage loans and the structure. Any such assumptions
are
subject to change. The information in this free writing prospectus may reflect
parameters, metrics or scenarios specifically requested by you. If so, prior
to
the time of your commitment to purchase, you should request updated information
based on any parameters, metrics or scenarios specifically required by you.
Neither the issuer of the securities nor any of its affiliates prepared,
provided, approved or verified any statistical or numerical information
presented in this free writing prospectus, although that information may
be
based in part on loan level data provided by the issuer or its
affiliates.
(ii) Each
Underwriter and the Company shall have the right to require additional specific
legends or notations to appear on any Free Writing Prospectus and shall have
the
right to require changes regarding the use of terminology and the right to
determine the types of information appearing in such legends or notations
with
the approval of the other (which shall not be unreasonably
withheld).
(iii) No
Free
Writing Prospectus used in connection with the offering of the Offered
Certificates shall contain any legend or disclaimer that would be impermissible
in a statutory prospectus or registration statement under the Securities
Act,
including but not limited to any disclaimer regarding accuracy, completeness,
or
reliance by prospective investors, statements requiring prospective investors
to
read or acknowledge that they have read or understand the Registration Statement
or any disclaimers or legends, language indicating that the communication
is
neither a prospectus nor an offer to sell or a solicitation or an offer to
buy,
or (for any Free Writing Prospectus required to be filed with the Commission)
that the information is confidential
(iv) If
the
Company
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, either the Company or that Underwriter may prepare corrective
information with notice to the other party and any other Underwriters, which
shall (a) terminate the
existing Contract of Sale, (b) provide 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 (c) provide
the investor with a meaningful ability for the investor to elect to enter
into
or not enter into a new Contract of Sale. The relevant Underwriter
shall deliver such information to the investor in a manner reasonably acceptable
to both that Underwriter and the Company. If the Company would have been
required to indemnify the Underwriter pursuant to Section 9(i) for any loss,
liability claim, damage or expense arising out of or relating to the error
or
omission had it not been timely corrected, then the Company will promptly
reimburse the Underwriter for any additional costs it incurs to the investor
in
connection with the any such termination or new Contract of Sale.
12
Section
7. Conditions
of Underwriters’ Obligations.
The
several obligations of the Underwriters hereunder to purchase the Offered
Certificates pursuant to the terms of this Agreement shall be subject to
the
following conditions:
(i) Each
of
the obligations of the Company 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
Company under any of the Transaction Documents to which it is a party 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
Transaction Documents, and the Representative shall have received certificates
to the foregoing effect, each signed by an appropriate officer of the
Company.
(ii) Prior
to
the Closing Date, (a) the Underwriters shall have received confirmation of
the
effectiveness of the Registration Statement, and (b) 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 Company, 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.
(iii) The
Transaction Documents and all of the other agreements identified in such
agreements, each in form and substance satisfactory to the Underwriters,
shall
have been duly entered into by all of the respective parties.
(iv) The
Company shall have furnished to the Underwriters an officer’s certificate of an
appropriate officer of the Company and an officer’s certificate of an
appropriate officer of the Sponsor, each dated the Closing Date, in form
and
substance reasonably satisfactory to the Representative and counsel for the
Underwriters.
(v) ▇▇▇▇▇
▇▇▇▇▇▇ LLP, Washington, D.C., counsel to the Company, shall have furnished
to
the Underwriters its written opinion, dated the Closing Date, and a negative
assurance letter with respect to the Preliminary Disclosure Package and the
Prospectus, each in form and substance reasonably satisfactory to the
Representative and counsel for the Underwriters.
13
(vi) In-house
counsel for the Company shall have furnished to the Underwriters a written
opinion, dated the Closing Date, in form and substance reasonably satisfactory
to the Representative and counsel for the Underwriters.
(vii) Counsel
for each of the Mortgage Loan Seller and the Servicer reasonably satisfactory
to the Underwriters shall have furnished to the Company and the Underwriters
its
written opinion, dated the Closing Date, in form and substance reasonably
satisfactory to the Representative and counsel for the
Underwriters.
(viii) Counsel
for ▇▇▇▇▇ Fargo reasonably satisfactory to the Underwriters shall have furnished
to the Underwriters its written opinion, dated the Closing Date, in form
and
substance reasonably satisfactory
to the Representative and counsel for the Underwriters.
(ix) Counsel
for the Trustee reasonably satisfactory
to the Underwriters shall have furnished to the Underwriters its written
opinion, dated as of the Closing Date, in form and substance
reasonably satisfactory
to the Representative and counsel for the Underwriters.
(x) Counsel
for the Swap Counterparty reasonably satisfactory
to the Underwriters shall have furnished to the Underwriters its written
opinion, dated as of the Closing Date, in form and substance
reasonably satisfactory
to the Representative and counsel for the Underwriters.
(xi) The
independent accountants of the Company or other accountants acceptable to
the
Underwriters shall have furnished to the Company and the Underwriters letter
or
letters dated on or before the date on which the Preliminary Disclosure Package
is dated and conveyed, in form and substance acceptable to the Underwriters
and
Underwriter’s counsel, regarding (a) certain numerical information contained or
incorporated by reference in the Preliminary Disclosure Package and (b) relating
to certain agreed upon procedures as requested by the Underwriters relating
to
the Mortgage Loans.
(xii) The
independent accountants of the Company or other accountants acceptable to
the
Underwriters shall have furnished to the Company and the Underwriters before
the
date on which the Prospectus Supplement is dated and printed, in form and
substance acceptable to the Underwriters and their counsel, letter or letters
regarding (a) certain numerical information contained or incorporated by
reference in the Prospectus Supplement and (b) relating to certain agreed
upon
procedures as requested by the Underwriters relating to the Mortgage
Loans.
(xiii) There
shall not have occurred any development that has caused a material adverse
change in the financial condition, results of operation or business of the
Company.
(xiv) On
or
after the date hereof, there shall not have occurred any of the following:
(a) a
suspension or material limitation in trading in securities generally on the
American Stock Exchange or the New York Stock Exchange, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities
have been required, by either of said Exchanges or by order of the Commission
or
any other governmental authority; (b) a general moratorium on commercial
banking
activities declared by either Federal or New York State authorities or any
material disruption in commercial banking or securities settlement or clearance
services in the United States; (c) the outbreak or escalation of material
hostilities involving the United States or the declaration by the United
States
of a national emergency or war; or (d) the occurrence of any other material
and
adverse calamity or crisis or any change in the financial, political or economic
conditions in the United States or elsewhere; if the effect of any such event
in
the reasonable judgment of the Representative makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Offered
Certificates on the terms and in the manner contemplated in the Prospectus
as
amended or supplemented.
14
(xv) The
Underwriters shall have received evidence satisfactory to it that the Offered
Certificates are rated in the rating category or categories specified on
Exhibit
A
hereto
by the rating agency or agencies specified on Exhibit
A
hereto.
(xvi) The
Company and the Sponsor shall have furnished to the Representative all such
other certificates of its officers or others and such other documents or
opinions as the Representative or its counsel may reasonably request.
(xvii) All
proceedings taken by the Company in connection with the issuance and sale
of the
Offered Certificates as herein contemplated shall be satisfactory in form
and
substance to the Underwriters and counsel for the Underwriters.
If
any
condition specified in this Section shall not have been fulfilled when and
as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notice to the Company 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 8 and 9.
Section
8. Payment
of Expenses.
The
Company agrees to pay all expenses incident to the performance of its
obligations hereunder including (i) the costs incident to the authorization,
issuance, sale and delivery of the Offered Certificates and any taxes payable
in
connection therewith; (ii) expenses of preparing, printing, reproducing and
filing the Registration Statement, the Prospectus, and the Preliminary
Disclosure Package, (iii) any fees charged by the securities rating services
for
the rating Offered Certificates, (iv) the cost of accountant’s comfort letters
relating to the Prospectus and the Preliminary Disclosure Package, and (v)
all
other costs and expenses incidental to the performance of the obligations
of the
Company; provided,
however,
that,
except as provided below in this Section 8, the Underwriters shall pay their
own
costs and expenses, including the costs and expenses of Underwriter’s counsel,
any transfer taxes on the Offered Certificates and the cost of any accountant’s
comfort letters relating to any Underwriter Free Writing
Prospectus.
If
this
Agreement is terminated because of a breach of the Company of any covenants
or
agreement hereunder (other than the failure of the closing condition set
forth
in Section 7(xiv) to be met), the Company shall cause the Underwriters to
be
reimbursed for all reasonable out of pocket expenses, including the fees
and
disbursements of Underwriter’s counsel.
Section
9. Indemnification.
15
(i) The
Company agrees to indemnify and hold harmless each Underwriter, each
Underwriter’s respective officers and directors, and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, an “Underwriter
Indemnified Party”), as follows:
(a) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
joint or several, to which they or any of them may become subject under the
Securities Act or the Exchange Act, or otherwise, insofar as such loss,
liability, claim, damage and expense (or actions in respect thereof including,
but not limited to, any loss, liability, claim, damage or expense related
to
purchases and sales of the Offered Certificates) (1) arises out of or is
based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, the Preliminary
Disclosure Package, the Designated Static Pool Information, any Issuer Free
Writing Prospectus, any Approved Issuer Information contained in any Underwriter
Free Writing Prospectus, or any information concerning the characteristics
of
the Mortgage Loans and related administrative and servicing fees most recently
provided by or on behalf of the Company or the Representative (“Pool
Information”) (but only to the extent the error or omission in such Pool
Information results an error or omission in Derived Information contained
in an
Underwriter Free Writing Prospectus), or (2) arises out of the omission or
alleged omission there from of a material fact required to be stated therein
or
necessary to make the statements therein not misleading; provided,
however,
that the
Company will not be liable in any such case to the extent that any such loss,
liability, claim, damage or expense arises out of or is based upon an untrue
statement or omission or alleged untrue statement or omission (x) contained
in
or omitted from the Registration Statement, the Prospectus or the Preliminary
Disclosure Package in reliance and in conformity with any Underwriter
Information, or (y) in any Approved Issuer Information or Pool Information
that
was superseded or corrected by the delivery to the Representative of corrected
information prior to the applicable Contract of Sale, or for which the Company
or Sponsor provided written notice of such error or omission to the
Representative prior to the applicable Contract of Sale and the relevant
Underwriter failed to correct such error;
(b) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
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 based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Company; and
(c) against
any and all expense whatsoever, as incurred (including, the fees and
disbursements of counsel chosen by the Underwriters), reasonably incurred
in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or
threatened, or any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission, to the extent
that
any such expense is not paid under (a) or (b) above.
The
Company will reimburse each Underwriter Indemnified Person for any legal
or
other expenses reasonably incurred by such Underwriter Indemnified Person
in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred. This indemnity agreement
will
be in addition to any liability with the Company may otherwise
have.
16
(ii) Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
each of the Company, each of its directors, each of its officers and each
person, if any, who controls the Company within the meaning of Section 15
of the
Securities Act or Section 20 of the Exchange Act (an “Issuer Indemnified Person”
and, collectively with Underwriter Indemnified Person, “Indemnified Party” or
“Indemnified Parties”, as applicable), against any and all loss, liability,
claim, damage and expense to which the Company or any such Issuer Indemnified
Party may become subject, under the Securities Act or the Exchange Act
otherwise, insofar as such loss, liability, claim, damage or expense (or
actions
in respect thereof) (1) arises out of or is based upon any untrue statement
or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus or the Preliminary Disclosure Package in reliance
on
and in conformity with Underwriter Information of such Underwriter, or arises
out of or is based upon any untrue statement or alleged untrue statement
of any
material fact contained in any Underwriter Free Writing Prospectus of such
Underwriter (including any Derived Information contained therein), (2) arises
out of the omission or alleged omission therefrom of a material fact required
to
be stated therein or necessary to make the statements therein not misleading,
or
(3) results from such Underwriter’s failure to provide any investor with the
Preliminary Disclosure Package prior to entering into a Contract of Sale
with
such investor; provided,
however,
that
such Underwriter will not be liable in any such case to the extent that any
such
loss, liability, claim, damage or expense arises out of or is based upon
an
untrue statement or omission or alleged untrue statement or omission (x)
in any
Approved Issuer Information contained in any such Underwriter Free Writing
Prospectus or (y) in any Derived Information contained in any such Underwriter
Free Writing Prospectus resulting from an error or omission in the Pool
Information, unless in either case it was superseded or corrected by the
delivery to the Representative of corrected information prior to the applicable
Contract of Sale, or the Company or Sponsor provided written notice of such
error or omission to the Representative prior to the applicable Contract
of Sale
and the relevant Underwriter failed to correct such error or
omission.
Each
Underwriter will reimburse each Issuer Indemnified Person for any legal or
other
expenses reasonably incurred by such Issuer Indemnified Person in connection
with investigation or defending any such loss, claim, 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.
(iii) Each
Indemnified Party shall give notice as promptly as reasonably practicable
to
each indemnifying party of any action commenced against it in respect of
which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which
it may
have to any Indemnified Party under this Section, unless the indemnifying
party
has been materially prejudiced by such failure to notify. In case any such
action is brought against any Indemnified Party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled
to
participate therein and, to the extent that, by written notice delivered
to the
Indemnified Party promptly after receiving the aforesaid notice from such
Indemnified Party, the indemnifying party elects to assume the defense thereof,
it may participate (jointly with any other indemnifying party similarly
notified) with counsel satisfactory to such Indemnified Party; provided,
however,
that if
the defendants in any such action include both the Indemnified Party and
the
indemnifying party and the Indemnified Party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or
other
indemnified parties that are different from or additional to those available
to
the indemnifying party, the Indemnified Party or parties shall have the right
to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such Indemnified Party
or
parties. Upon receipt of notice from the indemnifying party to such Indemnified
Party of its election so to assume the defense of such action and approval
by
the Indemnified Party of such counsel, the indemnifying party shall not be
liable to such Indemnified Party under this paragraph for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with
the
defense thereof, unless (a) the Indemnified Party shall have employed
separate counsel (plus any local counsel) in connection with the assertion
of
legal defenses in accordance with the proviso to the immediately preceding
sentence, (b) the indemnifying party shall not have employed counsel
satisfactory to the Indemnified Party to represent the Indemnified Party
within
a reasonable time after notice of commencement of the action, (c) the
indemnifying party has authorized the employment of counsel for the Indemnified
Party at the expense of the indemnifying party, or (d) a conflict or
potential conflict exists (based on advice of counsel to the Indemnified
Party)
between the Indemnified Party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such
action
on behalf of the Indemnified Party).
17
(iv) Each
Indemnified Party, as a condition of the indemnity agreements contained in
Sections 9(i) and 9(ii), shall use its good faith efforts to cooperate with
the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without
its
written consent (which consent shall not be unreasonably withheld), but if
settled with such consent or if there be a final judgment for the plaintiff,
the
indemnifying party shall indemnify the Indemnified Party from and against
any
loss or liability by reason of such settlement or judgment. Notwithstanding
the
foregoing, if at any time an Indemnified Party shall have requested an
indemnifying party to reimburse the Indemnified Party for fees and expenses
of
counsel, the indemnifying party agrees that it shall be liable of any such
settlement of any proceeding effected without its written consent if (i)
such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not
have
reimbursed the Indemnified Party in accordance with such request prior to
the
date of such settlement.
(v) If
the
indemnification provided for in this Section 9 is unavailable to an indemnified
party under Section 9(i) or Section 9(ii) hereof or insufficient in respect
of
any losses, claims, damages or liabilities referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect not only the relative benefits received by the Company
on
the one hand and the Underwriter on the other from the offering of the Offered
Certificates but also the relative fault of the Company on the one hand and
of
the Underwriter 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 Company on the one hand and the applicable
Underwriter on the other shall be deemed to be in the same proportion as
(a) the
total proceeds from the offering (net of underwriting discounts and commissions)
received by the Company and (b) the underwriting discounts and commissions
received by the applicable Underwriter, respectively, in respect of the offering
of the Offered Certificates so to which such losses, claims, expenses, damages
or liabilities is claimed to arise. The
relative fault of the Company on the one hand and of the Underwriter on the
other 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
Company
or by the Underwriter, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The
Company and the applicable Underwriter agree that it would not be just and
equitable if contribution 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 provision of this Section 9(v), (x)
in no
case shall the applicable Underwriter be liable or responsible for any amount
in
excess of the underwriting discount relating to the Offered Certificates
as to
which such losses, claims, expenses, damages or liabilities are claimed to
arise
and (y) that 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. 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, 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 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without this consent; provided,
however,
that
such consent was not unreasonably withheld. The Underwriters’ obligations in
this Section to contribute are several in proportion to their respective
underwriting obligations and not joint.
18
Section
10. Underwriters’
Responsibility for Free Writing Prospectuses.
Each
Underwriter acknowledges and agrees that no other Underwriter shall participate
in the planning for the use of any Underwriter Free Writing Prospectus of
such
Underwriter in any manner. Each Underwriter acknowledges and agrees that
for all
purposes of Rule 159A under the Securities Act, solely as between it and
the
other Underwriters, each respective Underwriter shall be responsible only
for
(a) the Preliminary Disclosure Package, (b) any Issuer Free Writing Prospectus
used in connection with the offering of Offered Certificates by such
Underwriter, (c) any Underwriter Free Writing Prospectus of such Underwriter,
and (d) any Underwriter Free Writing Prospectus of any other Underwriter,
but
only to the extent actually used in connection with the offering of the Offered
Certificates by such Underwriter.
Section
11. Default
by Underwriter.
If, on
the Closing Date, any Underwriter defaults in the performance of its obligations
under this Agreement and the aggregate principal amount of Offered Certificates
that such defaulting Underwriter agreed but failed to purchase does not exceed
10% of the total principal amount of Offered Certificates that the Underwriters
are obligated to purchase on the Closing Date, the non-defaulting Underwriters
may make arrangements for the purchase of the Offered Certificates which
such
defaulting Underwriter agreed but failed to purchase by other persons
satisfactory to the Company and the non-defaulting Underwriter. If any
Underwriter so defaults and the aggregate principal amount of Offered
Certificates with respect to which such default or defaults occur exceeds
10% of
the total principal amount of Offered Certificates that the Underwriters
are
obligated to purchase on such Closing Date and arrangements satisfactory
to the
non-defaulting Underwriter and the Company for the purchase of such Offered
Certificates by other persons are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of the
non-defaulting Underwrites or the Company, except that the Company will continue
to be liable for the payment of expenses and the indemnification provisions
shall not terminate and shall remain in effect. As used in this Agreement,
the
term “Underwriters” includes any person substituted for an Underwriter under
this Section.
19
Nothing
contained herein shall relieve a defaulting Underwriter of any liability
it may
have to the Company or any non-defaulting Underwriter for damages caused
by its
default. If other persons are obligated or agree to purchase the Offered
Certificates of a defaulting Underwriter, either the non-defaulting Underwriter
or the Company may postpone the Closing Date for up to seven full Business
Days
in order to effect any changes that in the opinion of the counsel for the
Company or counsel for the non-defaulting Underwriters may be necessary in
the
Registration Statement and/or the Prospectus or in any other document or
arrangement, and the Company agrees to promptly prepare any amendment or
supplement to the Registration Statement and/or the Prospectus that effects
any
such changes.
Section
12. Survival.
All
indemnities, representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of
the
Offered Certificates to the Underwriters.
Section
13. Termination
of Agreement.
The
Underwriters may terminate this Agreement, by notice to the Company, at any
time
at or prior to the Closing Date without liability on the part of any Underwriter
to the Company, if, prior to delivery and payment for the Offered Certificates,
any of
the
events specified in Section 7(xiv) has occurred or if any other closing
condition set forth in Section 7 shall not have been fulfilled when required
to
be fulfilled. In the event of any such termination, the provisions of Section
8
(expenses), Section 9 (indemnification and contribution), Section 12 (survival),
and Section 17 (governing law, etc.) shall remain in effect.
Section
14. Notices.
All
notices and other communications hereunder shall be in writing and effective
only on receipt and shall have been duly given if mailed via the
U.S. Postal Service, a reputable overnight delivery service, hand
delivered, sent by facsimile transmission or another reasonable and standard
form of telecommunication. Notices to HSBC Securities shall be directed to
HSBC
Securities (USA) Inc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇
▇▇▇▇▇▇▇▇ or Head MBS Principal Finance., []
Section
15. Persons
Entitled to the Benefit of this Agreement.
This
Agreement shall inure to the benefit of and be binding upon the Underwriters
and
the Company and their respective successors. Nothing expressed or mentioned
in
this Agreement is intended or shall be construed to give any person, firm
or
corporation, other than the Underwriters and the Company and their respective
successors and the controlling persons and officers and directors referred
to in
Section 9
any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision set forth herein. No purchaser of Offered Certificates from
the
Underwriters shall be deemed to be a successor by reason merely of such
purchase.
20
Section
16. No
Fiduciary or Advisory Duty.
The
Company acknowledges and agrees that (a) the Underwriters are acting solely
in
the capacity of an arm's length contractual counterparty to the Company with
respect to the offering of Offered Certificates contemplated hereby (including
in connection with determining the terms of the offering) and not as a fiduciary
to, or an agent of the Company or any other person, (b) the Underwriters
owe the
Company only those obligations set forth in this Agreement and (c) the
Underwriters may have interests that differ from those of the Company.
Additionally, neither the Representative nor any other Underwriter is advising
the Company or any other person as to any legal, tax, investment, accounting
or
regulatory matters in any jurisdiction. The Company shall consult with its
own
advisors concerning such matters and shall be responsible for making its
own
independent investigation and appraisal of the transactions contemplated
hereby.
Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely
for the benefit of the Underwriters and shall not be on behalf of the
Company.
Section
17. Governing
Law; Submission to Jurisdiction; Time.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York, without reference to any otherwise applicable conflict
of law
provisions (other than Section 5-1401 of the General Obligations Law), and
the
obligations, rights and remedies of the parties hereunder shall be determined
in
accordance with such laws. 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 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 any Terms Agreement 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 hard or
determined in New York State court or, to the extent permitted by law, in
such
federal court. 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. Specified times of day refer to New York City
time
Section
18. Execution
in Counterparts; Severability; Integration.
This
Agreement may be executed in any number of counterparts, each of which shall
for
all purposes be deemed to be an original and all of which when taken together
shall constitute but one and the same Agreement. In case any provision in
or
obligation under this Agreement shall be invalid, illegal or unenforceable
in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby. This
Agreement contains the final and complete integration of all prior expressions
by the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to
the
subject matter hereof, superseding all prior oral or written
understandings.
21
Section
19. 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
20. Representation
of the Underwriters.
HSBC
Securities (USA) Inc. shall act for the several Underwriters, if any, in
connection with each Offering of Certificates governed by this Agreement,
and
any action under this Agreement taken by it will be binding upon all the
Underwriters.
[SIGNATURE
PAGE FOLLOWS]
22
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to the Company a counterpart hereof, whereupon this Agreement,
along
with all counterparts, will become a binding agreement among each of the
Underwriters and the Company in accordance with its terms.
Very
truly yours,
By:_____________________________________
Name:
▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title:
Vice President
CONFIRMED
AND ACCEPTED, as of the date first above written:
HSBC
SECURITIES (USA) INC.
By:_____________________________________
Name:
▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Vice President
23
EXHIBIT
A
Exhibit
A-1
EXHIBIT
B
UNDERWRITER
INFORMATION
Exhibit
B-1