Exhibit 1.1
HSI Asset Securitization Corporation
$[_____________]
(Approximate)
[__________________] Owner Trust
Series 200_-_ Notes
FORM OF UNDERWRITING AGREEMENT
______________, 200__
HSBC Securities (USA) Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
HSI Asset Securitization Corporation, a Delaware corporation (the
"Company") proposes to sell to HSBC Securities (USA) Inc. ("HSBC") [and
__________________ ("_____" and together with HSBC, the "Underwriters")],
pursuant to this agreement ("Agreement"), [_____] Asset Backed Notes, Series
200_-_ (the "Offered Notes") issued by [_______] Owner Trust 200_-_, a Delaware
business trust (the "Owner Trust" or the "Issuer"). The Owner Trust will be
formed pursuant to a trust agreement, to be dated as of [______________], 200_
(the "Owner Trust Agreement"), among the Company, as depositor, [_________], as
owner trustee (the "Owner Trustee"), ____________________, as paying agent
("____________," and in such capacity, the "Paying Agent") and _______________
("________" or the "Transferor"). The Notes will be secured by the assets of the
Owner Trust, which is primarily comprised of a pool (the "Pool") of
[______________] (the "[_____________________]") as described in the Prospectus
(as hereinafter defined). The [______________] will be sold by the Company to
the Owner Trust pursuant to a sale and servicing agreement, to be dated as of
___________, 200_ (the "Sale And Servicing Agreement"), among the Owner Trust,
as issuer, the Company, as depositor, [______________], as indenture trustee (in
such capacity, the "Indenture Trustee"), [______________], as servicer, and the
Transferor. The [______________] will be sold by [______________] to the Company
pursuant to a mortgage loan purchase agreement, to be dated as of
[______________], 200_ (the "Purchase Agreement"), between the Company, as
depositor, and [______________], as transferor. The Notes will be issued
pursuant to an indenture, to be dated as of [______________], 200_ (the
"Indenture"), between the Owner Trust and the Indenture Trustee. Reference is
hereby made to (i) an indemnification and contribution agreement, dated
[______________], 200_ (the "Indemnification And Contribution Agreement"), among
the Company, the Underwriter[s] and [______________], (ii) an administration
agreement, to be dated as of [______________], 200_ (the "Administration
Agreement"), among the Owner Trust, [______________] (in such capacity, the
"Administrator") and ___________ and (iii) a custodial agreement, to be dated as
of [______________], 200_ (the "Custodial Agreement"), among [______________],
the Company and [______________] (in such capacity, the "Custodian"). The
[_________________]
Purchase Agreement, the Sale and Servicing Agreement, the Indenture, the Owner
Trust Agreement, the Indemnification and Contribution Agreement, the Custodial
Agreement, the Administration Agreement and this Agreement are collectively
referred to herein as the "Transaction Documents." The Notes are described more
fully in the Prospectus (as hereinafter defined). Only the Offered Notes are
being sold pursuant to this Agreement.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-______) for the
registration of the Notes under the Securities Act of 1933 (the "1933 Act"),
which registration statement has become effective and copies of which, as
amended to the date hereof, have been delivered to [each of] the Underwriter[s].
The Company proposes to file with the Commission pursuant to Rule 424(b)(5)
under the rules and regulations of the Commission under the Act (the "1933 Act
Regulations") a prospectus supplement, dated [______________], 200_ (the
"Prospectus Supplement"), to the prospectus, dated [______________], 200_,
included in such registration statement, relating to the Offered Notes and the
method of distribution thereof. Such registration statement on Form S-3,
including exhibits thereto, as amended as of the date hereof, is hereinafter
called the "Registration Statement"; and such prospectus, supplemented by the
Prospectus Supplement or further supplement relating to the Offered Notes, is
hereinafter called the "Prospectus".
Section 1. Representations and Warranties.
(a) The Company represents and warrants to the Underwriter[s] as
follows:
(i) The Registration Statement, as amended as of the effective date
thereof (the "Effective Date") and the Prospectus, as of the date thereof,
complied in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations. The Registration Statement, as of the
Effective Date, did not contain an 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 the
date thereof, did not, and as of the Closing Date will not, contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus (A) arising from or included in [______________] Information
(as defined in the Indemnification and Contribution Agreement) or (B) made
in reliance upon and in conformity with information furnished to the
Company in writing by [each of] the Underwriter[s] expressly for use in
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the Registration Statement or Prospectus. The Company and the
Underwriter[s] hereby acknowledge that only the statements set forth in
the [____] paragraph of the cover of the Prospectus Supplement (other than
the [____] sentence), under the caption "Underwriting" in the Prospectus
Supplement (other than the [____] paragraph and the [____] sentence of the
[____] paragraph under such caption) and the Underwriter Information (as
defined in Section 8(k)) contained in any Furnished Computational
Materials (as defined in Section 8(b)) and Furnished Term Sheets (as
defined in Section 8(d)), constitute statements made in reliance upon and
in conformity with information furnished to the Company in writing by
[each of] the Underwriter[s] expressly for use in the Registration
Statement, or Prospectus (such statements being collectively referred to
as "Underwriter Statements").
(ii) Since the respective dates as of which information is given in
the Registration Statement and Prospectus, except as otherwise stated
therein, (A) 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, whether or not arising in the ordinary course of
business, and (B) there have been no transactions entered into by the
Company, other than those in the ordinary course of business, which are
material with respect to the Company, in either case which would
materially and adversely affect the Company's ability to perform its
obligations hereunder or under the Transaction Documents to which it is a
party.
(iii) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with 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 the Company 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.
(iv) The Company is not in violation of its charter or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company is a party, or to which any of the property or assets of the
Company may be subject, or by which it or any of them may be bound; and
the issuance and sale of the Notes to [each of] the Underwriter[s], the
execution, delivery and performance of the Transaction Documents to which
it is a party and the consummation of the transactions contemplated
therein and compliance by the Company with its obligations thereunder have
been duly authorized by all necessary corporate action and will not
conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance 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 or any of them 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 regulation
or administrative or court decree, except for such conflicts, breaches,
defaults, liens, charges or encumbrances that would not, individually or
in the aggregate, materially and adversely affect the Company or the
transactions contemplated hereby.
(v) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company,
which is required to be disclosed in the Registration Statement (other
than as disclosed therein), or which might
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materially and adversely affect the Company's ability to perform its
obligations hereunder or under the Transaction Documents to which it is a
party; all pending legal or governmental proceedings to which the Company
is a party or of which its property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, are, considered in the aggregate,
not material.
(vi) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering, issuance or sale of the Offered Notes hereunder, except such as
have been, or as of the Closing Date will have been, obtained or such as
may otherwise be required under applicable state securities laws in
connection with the purchase and offer and sale of the Offered Notes by
the Underwriter[s], and except for such authorizations, approvals and
consents of which the failure to obtain would not, individually or in the
aggregate, materially and adversely affect the Company or the transactions
contemplated hereby.
(vii) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to perform its obligations
hereunder or under any Transaction Document to which the Company is a
party, except for such licenses, certificates, authorities or permits of
which failure to obtain would not, individually or in the aggregate,
materially and adversely affect the Company or the transactions
contemplated hereby.
(viii) Each of the Transaction Documents to which it is a party has
been duly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding agreement 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 Sale and
Servicing Agreement, the Company (i) will have good and marketable title
to the [_________________] being transferred by it to the Owner Trust
pursuant thereto, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively
"Liens"), to the extent good and marketable title to the
[_________________] is transferred to the Company, free and clear of all
Liens, by the Transferor, and (ii) will have the power and authority to
transfer such [_________________] to the Owner Trust, and upon execution
and delivery of the Sale and Servicing Agreement by the Owner Trust and
the Transferor, the Owner Trust will have acquired ownership of all of the
Company's right, title and interest in and to the related
[_________________].
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(x) At the Closing Date, the Notes will be rated not lower than
"____" by _________ ("______") and "____" by _________ ("______").
(xi) 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 Notes have been paid or will be paid
at or prior to the Closing Date.
(b) Any certificate signed by any officer of the Company and
delivered to the Underwriter[s] or [its/their] counsel shall be deemed a
representation and warranty by the Company to the Underwriter[s] as to the
matters covered thereby.
Section 2. Purchase And Sale. Subject to the terms and conditions
herein set forth and in reliance upon the representations and warranties herein
contained, the Company agrees to sell to [each of] the Underwriter[s], and [each
of] the Underwriter[s] agrees[, severally and not jointly,] to purchase from the
Company, at a purchase price set forth on Schedule A hereto, the principal
amount of the Offered Notes set forth [opposite its name] on Schedule A hereto.
Section 3. Delivery And Payment. Payment of the purchase price for,
and delivery of, the Offered Notes to be purchased by the Underwriter[s] shall
be made at the office of HSBC Securities (USA) Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by the Underwriter[s]
and the Company, at 10:00 A.M. New York City time, on __________, 200_, which
date and time may be postponed by agreement between you 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 Notes or with respect to payments to be made by HSBC, at the Company's
option, by appropriate notation of an inter-company transfer between affiliates
of [__________]. The Offered Notes shall be in such denominations and registered
in such names as you may request in writing at least two business days before
Closing Date. The Offered Notes will be made available for examination and
packaging by you not later than 10:00 A.M. on the last business day prior to
Closing Date.
Section 4. Covenants Of The Company. The Company covenants with
[each of] the Underwriter[s] as follows:
(a) The Company will give the Underwriter[s] notice of its intention
to file or prepare any amendment to the Registration Statement or any amendment
or supplement to the Prospectus (including any revised prospectus which the
Company proposes for use by the Underwriter[s] in connection with the offering
of the Offered Notes which differs from the prospectus on file at the Commission
at the time the Registration Statement becomes effective, whether or not such
revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933
Act Regulations), will furnish the Underwriter[s] with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which you shall reasonably object.
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(b) The Company will cause the Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424(b)(5) under the 1933 Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule.
(c) The Company will deliver to the Underwriter[s] as many signed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein) as the Underwriter[s] may reasonably request and will also deliver to
the Underwriter[s] a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits).
(d) The Company will furnish to [each of] the Underwriter[s], from
time to time during the period when the Prospectus is required to be delivered
under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such
number of copies of the Prospectus (as amended or supplemented) as [each of] the
Underwriter[s] may reasonably request for the purposes contemplated by the 1933
Act or the 1934 Act or the respective applicable rules and regulations of the
Commission thereunder.
(e) If during the period after the first date of the public offering
of the Offered Notes in which a prospectus relating to the Offered Notes is
required to be delivered under the 1933 Act, any event shall occur as a result
of which it is necessary, in the opinion of counsel for you, to amend or
supplement the Prospectus in order to make the Prospectus not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser,
the Company will forthwith amend or supplement the Prospectus (in form and
substance satisfactory to counsel for you) so that, as so amended or
supplemented, the Prospectus will not include 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 existing at the time it is delivered
to a purchaser, not misleading, and the Company will furnish to the
Underwriter[s] a reasonable number of copies of such amendment or supplement.
(f) The Company will endeavor to arrange for the qualification of
the Offered Notes for sale under the applicable securities laws of such states
and other jurisdictions of the United States as the Underwriter[s] may
designate; provided, however, that the Company shall not be obligated to qualify
as a foreign corporation in any jurisdiction in which it is not so qualified. In
each jurisdiction in which the Offered Notes have been so qualified, the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification for so long as may be required for
the distribution of the Offered Notes.
(g) If the transactions contemplated by this Agreement are
consummated, the Company will pay or cause to be paid all expenses incident to
the performance of the obligations of the Company under this Agreement, and will
reimburse the Underwriter[s] for any reasonable expenses (including reasonable
fees and disbursements of counsel) reasonably incurred by [it/them] in
connection with qualification of the Offered Notes for sale and determination of
their eligibility for investment under the laws of such jurisdictions as the
Underwriter[s] ha[ve/s] reasonably requested and the printing of memoranda
relating thereto, for any fees charged by investment rating agencies for the
rating of the Offered Notes, and for expenses incurred by [each of them/it] in
distributing the Prospectus (including any amendments and supplements
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thereto) to the Underwriter[s]. Except as herein provided, the Underwriter[s]
shall be responsible for paying all costs and expenses incurred by [it/each of
them] including the fees and disbursements of counsel, in connection with the
purchase and sale of the Offered Notes.
(h) If, during the period after the Closing Date in which a
prospectus relating to the Offered Notes is required to be delivered under the
1933 Act, the Company receives notice that a stop order suspending the
effectiveness of the Registration Statement or preventing the offer and sale of
the Offered Notes is in effect, the Company will immediately advise the
Underwriter[s] of the issuance of such stop order. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
Section 5. Conditions Of Underwriter[s'/'s] Obligations. The
Underwriter[s'/'s] obligation to purchase the Offered Notes shall be subject to
the following conditions:
(a) The Owner Trust Agreement, the Indenture, the Sale and Servicing
Agreement, the Purchase Agreement and all of the other agreements identified in
such agreements shall have been duly entered into by all of the respective
parties;
(b) Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Company, shall
have furnished to the Underwriter[s] its written opinions, dated the Closing
Date, in form and substance satisfactory to the Underwriter[s];
(c) In-house counsel for the Company shall have furnished to the
Underwriter[s] a written opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriter[s];
(d) Counsel for Indenture Trustee satisfactory to the Underwriter[s]
shall have furnished to the Underwriter[s] its written opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriter[s] and
counsel for the Underwriter[s];
(e) Counsel for the Owner Trustee satisfactory to the Underwriter[s]
shall have furnished to the Underwriter[s] its written opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriter[s] and
counsel for the Underwriter[s];
(f) Counsel for the Owner Trust satisfactory to the Underwriter[s]
shall have furnished to the Underwriter[s] its written opinion, dated as of the
Closing Date, in form and substance satisfactory to the Underwriter[s] and
counsel for the Underwriter[s];
(g) The independent accountants of the Company or other accountants
acceptable to the Underwriter[s] shall have furnished to the Underwriter[s] a
letter or letters, dated on the date hereof, and a letter or letters, dated the
Closing Date, respectively, containing statements and information of the type
customarily included in accountants' "comfort letters" and "agreed upon
procedures letters" with respect to certain financial information contained in
the Prospectus, in each case as to such matters as the Underwriter[s] may
reasonably request and in form and substance satisfactory to the Underwriter[s];
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(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended prior to the Closing Date
any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the Closing Date, and (ii)
since the respective dates as of which information is given in the Prospectus as
amended prior to the Closing Date there shall not have been any change in the
capital stock or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus as amended prior to the Closing Date, the
effect of which, in any such case described in clause (i) or (ii), is in the
judgment of the Underwriter[s] so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the delivery of the
Offered Notes on the terms and in the manner contemplated in the Prospectus as
first amended or supplemented;
(i) On or after the date hereof, there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general moratorium
on commercial banking activities in New York 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; or (iii) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war; or (iv) the
occurrence of any other 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 specified in clause (iii) or (iv) in the judgment of
the Underwriter[s] makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Offered Notes on the terms and in the
manner contemplated in the Prospectus;
(j) The Underwriter[s] shall have received evidence satisfactory to
them that the Offered Notes are rated in the rating category or categories
specified on Schedule A hereto by the rating agency or agencies specified on
Schedule A hereto;
(k) All opinions, certificates and other documents incident to, and
all proceedings in connection with the transactions contemplated by, this
Agreement, the [Assignment Agreement] [Purchase and Sale Agreement], [the ▇▇▇▇
of Sale] and the Pooling and Servicing Agreement shall be satisfactory in form
and substance to the Underwriter[s] and counsel to the Underwriter[s];
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(m) The Company shall have furnished or caused to be furnished to
the Underwriter[s] at the Closing Date certificates of its officers satisfactory
to the Underwriter[s] as to the accuracy in all material respects of its
representations and warranties herein at and as of such Closing Date, as to the
performance of all of its obligations hereunder to be performed at or prior to
such Closing Date, as to the matters set forth in Section 5(a) above and as to
such other matters as the Underwriter[s] may reasonably request; and
(n) On the Closing Date counsel for the Underwriter[s] shall have
been furnished with such other documents and opinions as counsel may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Offered Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Offered
Notes as herein contemplated shall be satisfactory in form and substance to the
Underwriter[s] and counsel for the Underwriter[s].
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 Underwriter[s] 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.
Section 6. Indemnification. The Company and [each of] the
Underwriter[s] agree that:
(a) The Company agrees to indemnify and hold harmless [each/the]
Underwriter and each person, if any, who controls [such/the] Underwriter within
the meaning of Section 15 of the 1933 Act:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information deemed to
be part of the Registration Statement pursuant to Rule 430A(b) of the 1933
Act Regulations, if applicable, or 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 arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) 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
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(iii) against any and all expense whatsoever, as incurred
(including, the fees and disbursements of counsel chosen by you),
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 (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission (a) arising from
or included in the [_________________] Information, (b) made in the Underwriter
Statements or (c) arising out of or based upon the failure of [any/the]
Underwriter to comply with any provision of Section 8.
(b) [Each/The] Underwriter agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to (i) untrue statements or
omissions, or alleged untrue statements or omissions, made in the Underwriter
Statements or (ii) the failure of [such/the] Underwriter or any member of its
selling group to comply with any provision of Section 8. [Only the Underwriter
who failed to comply with Section 8 shall have the foregoing obligations for
such failure, provided however, that each such Underwriter shall have the
foregoing obligations for any such failure by any member of its selling group.]
(c) 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 unless it has been
materially prejudiced by such failure to notify or from any liability which it
may have otherwise than on account of this indemnity agreement. 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
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(i) 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, (ii) 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, (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party, or (iv) 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).
Unless it shall assume the defense of any proceeding, the indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, 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. If any indemnifying party assumes the defense of any
proceeding, it shall not settle, compromise or consent to the entry of any
judgment with respect thereto if indemnification or contribution could be sought
under this Section 6 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes any unconditional release of each indemnified party from all liability
arising out of such proceeding and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) [Each Underwriter will indemnify and hold harmless each other
Underwriter and each person, if any, who controls each such Underwriter within
the meaning of either the 1933 Act or the 1934 Act (a "Non-Indemnifying
Underwriter") from and against any and all losses, claims, damages or
liabilities, joint or several, to which such Non-Indemnifying Underwriter
becomes subject under the 1933 Act, the 1934 Act or other federal or state
statutory law or regulation, common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement of material fact contained in any
computational or other written materials developed by, mailed or otherwise
transmitted by such indemnifying Underwriter or any member of its selling group,
in connection with the Offered Notes or in any revision or amendment thereof or
supplement thereto or (ii) the failure of such indemnifying Underwriter, or any
member of its selling group, to comply with any provision of Section 8, and
agrees to reimburse each such Non-Indemnifying Underwriter, as incurred for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.]
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 6 hereof
is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and [each/the] Underwriter
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company and [each/the] Underwriter, as incurred, in such proportion as is
appropriate to reflect not only the relative benefits received by the Company on
the one hand and [each/the] Underwriter on the other from the offering of the
Offered Notes but also the relative fault of the Company on the one hand and
[each/the] Underwriter on the other in connection with the statements or
omissions which resulted on such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company on the one hand 11
and of [each/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 relates to information supplied by the Company or by [such/the]
Underwriter, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) or willful failure to comply with
Section 8 shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation or failure to comply with Section 8 hereto,
as the case may be. For purposes of this Section, each person, if any, who
controls [an/the] Underwriter within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as [such/the] Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company. This indemnity agreement will be in addition to any liability that
[any/the] Underwriter may otherwise have. Notwithstanding the provisions of this
Section 6, [no/the] Underwriter shall [not] be required to contribute any amount
in excess of the amount by which the total price at which the Notes underwritten
by it and distributed to the public were sold to the public exceeds the amount
of any damages which [such/the] Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission.
Section 7. Default By An Underwriter.
(a) [If, on the Closing Date, any Underwriter defaults in the
performance of its obligations under this Agreement and the aggregate principal
amount of Offered Notes that such defaulting Underwriter agreed but failed to
purchase does not exceed 10% of the total principal amount of Offered Notes that
the Underwriters are obligated to purchase on the Closing Date, the
non-defaulting Underwriter may make arrangements for the purchase of the Offered
Notes 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 Notes with
respect to which such default or defaults occur exceeds 10% of the total
principal amount of Offered Notes that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to the
non-defaulting Underwriter[s] and the Company for the purchase of such Offered
Notes 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
Underwriter or the Company, except that the Company will continue to be liable
for the payment of expenses to the extent set forth in Section 4(g) and except
that the provisions of Sections 6 and 8 shall not terminate and shall remain in
effect. As used in this Agreement, the term "Underwriters" includes, for all
purposes of this Agreement unless the context otherwise requires, any party not
listed in Schedule 1 hereto that, pursuant to this Section 7 purchases Notes
which a defaulting Underwriter agreed but failed to purchase.
(b) 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 Notes 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
12
counsel for the Company or counsel for the non-defaulting Underwriter 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 8. Computational Materials And ABS Term Sheets.
(a) The parties acknowledge that, subsequent to the date on which
the Registration Statement became effective and up to and including the date on
which the Prospectus with respect to the Offered Notes is first made available
to the Underwriter[s], the Underwriter[s], including any member of its selling
group, may furnish to various potential investors in Notes, in writing: (i)
"Computational Materials," as defined in a no-action letter (the "▇▇▇▇▇▇
No-Action Letter") issued by the staff of the Commission on May 20, 1994 to
▇▇▇▇▇▇, Peabody Acceptance Corporation I, et al., as modified by a no-action
letter (the "First PSA No-Action Letter") issued by the staff of the Commission
on May 27, 1994 to the Public Securities Association (the "PSA") and as further
modified by a no-action letter (the "Second PSA No-Action Letter," and together
with the ▇▇▇▇▇▇ No-Action Letter and the First PSA No-Action Letter, the
"No-Action Letters") issued by the staff of the Commission on February 17, 1995
to the PSA; (ii) "Structural Term Sheets," as defined in the Second PSA
No-Action Letter and/or (iii) "Collateral Term Sheets," as defined in the Second
PSA No-Action Letter.
(b) In connection with the Offered Notes, [each/the]Underwriter
shall comply with all rules and regulations in connection with the use of
Computational Materials and furnish to the Company, at least one business day
prior to the time of filing of the Prospectus pursuant to Rule 424 under the
1933 Act, all Computational Materials used by [such/the] Underwriter, or any
member of its selling group, and required to be filed with the Commission in
order for [such/the] Underwriter to avail itself of the relief granted in the
No-Action Letters (such Computational Materials, the "Furnished Computational
Materials").
(c) In connection with the Offered Notes, [each/the] Underwriter
shall comply with all rules and regulations in connection with the use of
Structural Term Sheets and shall furnish to the Company, at least one business
day prior to the time of filing of the Prospectus pursuant to Rule 424 under the
1933 Act, all Structural Term Sheets used by [such/the] Underwriter, or any
member of its selling group, and required to be filed with the Commission in
order for [such/the] Underwriter to avail itself of the relief granted in the
No-Action Letters (such Structural Term Sheets, the "Furnished Structural Term
Sheets").
(d) In connection with the Offered Notes, [each/the] Underwriter
shall comply with all rules and regulations in connection with the use of
Collateral Term Sheets and shall furnish to the Company, within one business day
after the first use thereof, all Collateral Term Sheets used by [such/the]
Underwriter, or any member of its selling group, and required to be filed with
the Commission in order for [such/the] Underwriter to avail itself of the relief
granted in the No-Action Letters (such Collateral Term Sheets, the "Furnished
Collateral Term Sheets" and together with the Furnished Structural Term Sheets,
the "Furnished Term Sheets") and shall advise the Company of the date on which
each such Collateral Term Sheet was first used.
13
(e) The Company shall cause to be filed with the Commission one or
more current reports on Form 8-K (collectively, together with any amendments and
supplements thereto, the "8-Ks," and each an "8-K") with respect to all
Furnished Computational Materials and Furnished Term Sheets used by [an/the]
Underwriter or any member of its selling group such that [such/the] Underwriter
may avail itself of the relief granted in the No-Action Letters. In particular,
the Company shall cause to be filed with the Commission (i) all of the Furnished
Computational Materials and all of the Furnished Structural Term Sheets on an
8-K prior to or concurrently with the filing of the final Prospectus with
respect to the Notes pursuant to Rule 424 under the 1933 Act; and (ii) all of
its Furnished Collateral Term Sheets on an 8-K not later than two business days
after the first use thereof.
(f) [Each/The] Underwriter represents and warrants to, and covenants
with, the Company that as presented in any Furnished Term Sheets, the
Underwriter Information (defined below) is not misleading and not inaccurate in
any material respect and that any Pool Information (defined below) contained in
any Furnished Term Sheets prepared by it which is not otherwise inaccurate in
any material respect is not presented in such Furnished Term Sheets prepared by
it in a way that is either misleading or inaccurate in any material respect.
[The/Each] Underwriter further covenants with the Company that if any
Computational Materials or ABS Term Sheets (as such term is defined in the
Second PSA No-Action Letter) contained in any Furnished Term Sheets are found to
include any information that is misleading or inaccurate in any material
respect, [such/the] Underwriter promptly shall inform the Company of such
finding and provide the Company with revised and/or corrected Computational
Materials or ABS Term Sheets, as the case may be and the Company shall cause to
be delivered for filing to the Commission in accordance herewith, an 8-K
containing such revised and/or corrected Computational Materials or ABS Term
Sheets, as the case may be.
(g) The Company must receive from a firm of independent certified
accountants ("Independent Accountants"), which accountants are reasonably
acceptable to the Company, a letter in form and substance satisfactory to the
Company to the effect that such Independent Accountants have performed certain
specified procedures, all of which have been agreed by the Company, as a result
of which they have determined the accuracy in all material respect of the
numerical and financial information included in the Furnished Computational
Materials and Furnished Term Sheets.
(h) [Each/The] Underwriter covenants that all Computational
Materials and ABS Term Sheets used by it shall contain the following legend:
"THE INFORMATION INCLUDED HEREIN IS PRODUCED AND PROVIDED
EXCLUSIVELY BY [UNDERWRITER] ("UNDERWRITER") AS UNDERWRITER FOR THE
[___________] TRUST 200_-_ AND NOT BY _______ OR AS AGENT FOR
[____________] OR ANY OF ITS AFFILIATES (COLLECTIVELY, THE
"TRANSFEROR")."
(i) [The/Each] Underwriter covenants that all Collateral Term Sheets
used by it shall contain the following additional legend:
14
"THE INFORMATION HEREIN IS PRELIMINARY AND WILL BE SUPERSEDED BY THE
APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER INFORMATION
SUBSEQUENTLY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION."
(j) [The/Each] Underwriter covenants that all Collateral Term Sheets
(other than the initial Collateral Term Sheet) shall contain the following
additional legend:
"THE INFORMATION CONTAINED HEREIN SUPERSEDES THE INFORMATION IN ALL
PRIOR COLLATERAL TERM SHEETS, IF ANY."
(k) Notwithstanding the foregoing, subsection 8(g) will be satisfied
if all Computational Materials and ABS Term Sheets referred to therein bear a
legend in a form approved by the Company.
(l) For purposes of this Agreement, the term "Underwriter
Information" means such portion, if any, of the information contained in any
Furnished Term Sheets that is not Pool Information or Prospectus Information (as
those terms are defined below); provided, however, that information contained in
Furnished Term Sheets that is not Pool Information or Prospectus Information
shall not constitute Underwriter Information to the extent such information is
inaccurate or misleading in any material respect directly as a result of it
being based on Pool Information or Prospectus Information that is inaccurate or
misleading in any material respect. "Pool Information" means the information
furnished to the Underwriter[s] by the Company regarding the [______] and
"Prospectus Information" means the information contained in (but not
incorporated by reference in) any Prospectus, provided, however, that if any
information that would otherwise constitute Pool Information or Prospectus
Information is presented in any Furnished Term Sheets in a way that is either
inaccurate or misleading in any material respect, such information shall not be
Pool Information or Prospectus Information.
Section 9. Representations, Warranties And Agreements To Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of [any/the] Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Offered Notes to the Underwriter[s].
Section 10. Termination Of Agreement. The Underwriter[s] 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/the] Underwriter to the
Company, if, prior to delivery and payment for the Notes, (i) there has occurred
any material adverse change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation thereof or other calamity
or crisis the effect of which is such as to make it, in the judgment of the
Underwriter[s], impracticable to market the Offered Notes on the terms and in
the manner contemplated by the Prospectus, or (ii) if trading generally on
either the American Stock Exchange or the New York
15
Stock Exchange has been suspended, 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, or if a banking moratorium has been declared by either Federal or New
York authorities.
Section 11. 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 and a reputable overnight delivery
service, hand delivered, sent by facsimile transmission or another reasonable
and standard form of telecommunication. Notices to HSBC shall be directed to
HSBC Securities (USA) Inc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
[______________]; notices to _________ shall be directed to ________________,
________________, ___________, ________________, Attention: _________________;
and notices to the Company shall be directed to it at HSI Asset Securitization
Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, attention of the
[____________] with a copy to the [_____________]; or, as to any party, such
other address as may hereafter be furnished by such party to the other parties
in writing.
Section 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriter[s] 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
Underwriter[s] and the Company and their respective successors and the
controlling persons and officers and directors referred to in Section 6 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Underwriter[s] and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Offered Notes from the
Underwriter[s] shall be deemed to be a successor by reason merely of such
purchase.
16
Section 13. No Fiduciary or Advisory Duty. The Company acknowledges
and agrees that the Underwriter[s] are acting solely in the capacity of an arm's
length contractual counterparty to the Company with respect to the offering of
Offered Notes contemplated hereby (including in connection with determining the
terms of the offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, the Company
acknowledges and agrees that [the Underwriter is not] [no 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 their own independent investigation and appraisal of the transactions
contemplated hereby, and the Company acknowledges and agrees that the
Underwriter[s] shall have no responsibility or liability to the Company with
respect thereto. Any review by the Underwriter[s] of the Company, the
transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriter[s] and shall not be
on behalf of the Company. The Company acknowledges and agrees that the
Underwriter[s] have agreements, arrangements, understandings and other
relationships with and owe duties and obligations to third parties, including
potential purchasers of the Offered Notes, that may create or exacerbate actual,
potential or apparent conflicts of interests between the Company and the
Underwriter[s], and the Company acknowledges and agrees that the Underwriter[s]
shall have no responsibility or liability to the Company with respect thereto.
Section 14. Governing Law; Time; Jurisdiction. This Agreement shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in said State. Specified
times of day refer to New York City time.
Section 15. 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.
[SIGNATURE PAGE FOLLOWS]
17
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 Underwriter[s] and the Company in accordance with its terms.
Very truly yours,
HSI ASSET SECURITIZATION CORPORATION
By:____________________________________
Name: ______________________________
Title: _____________________________
CONFIRMED AND ACCEPTED, as of the date first above written:
HSBC SECURITIES (USA) INC.
By:____________________________________
Name: _________________________________
Title: ________________________________
SCHEDULE A
Purchase Price as a
Aggregate Principal Percentage of the Aggregate Ratings
Amount of Notes to Principal Amount of Notes ([___]/[___]/
Underwriter be Purchased to be Purchased [___]/[___])
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