<PAGE> 1
EXHIBIT 1.1
UNION PLANTERS HOME EQUITY CORP.
MORTGAGE PASS-THROUGH CERTIFICATES
[SERIES 2000-__]
FORM OF
UNDERWRITING AGREEMENT
[__________, 2000]
Ladies and Gentlemen:
Union Planters Home Equity Corp., a Delaware corporation (the
"Company") proposes to sell to you (the "Underwriter"), the Mortgage
Pass-Through Certificates of the series and classes, and in the respective
original principal or notional, as the case may be, amounts or percentage
interests, set forth in Schedule I hereto (the "Offered Securities"), evidencing
ownership interests in a trust consisting of [____________________] to be
acquired by the Company (the "Assets") and [____________________] (collectively,
the "Trust Fund"). The Assets will be acquired by the Company on the Closing
Date (as defined herein) from the asset seller (the "Asset Seller") specified in
the Prospectus Supplement (as defined herein) pursuant to a
[____________________] dated as of [____________________]. The Assets will be of
the type and will have the characteristics described in the Prospectus
Supplement, subject to the variances, ranges, minimums and maximums set forth in
the Prospectus Supplement, and will have the aggregate principal balance set
forth in the Prospectus Supplement, subject to an upward or downward variance in
principal balance, not to exceed the percentage set forth in the Prospectus
Supplement.
The Offered Securities, together with the other classes of certificates
of the series specified on [Schedule II] hereto [(the "___________," and
collectively with the ______________, the "Securities")] are to be issued under
a [____________________] (the [____________________]), dated as of the Cut-Off
Date (as defined in the Prospectus Supplement), among the
[____________________]. The Offered Securities of each class will be issued in
the minimum denominations and will have the terms set forth in the Prospectus
Supplement. Capitalized terms used but not otherwise defined herein shall have
the respective meanings ascribed thereto in the [____________________].
1. Representations and Warranties. The Company represents and
warrants to and agrees with the Underwriter that:
(i) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement (No.
[____________________]) on Form S-3 for the registration under the
Securities Act of 1933, as amended (the "Act"), of
<PAGE> 2
[____________________] and [____________________] (issuable in series),
including the Securities, which registration statement has become
effective, and a copy of which, as amended to the date hereof, has
heretofore been delivered to you. The Company proposes to file with the
Commission pursuant to Rule 424(b) under the rules and regulations of
the Commission under the Act (the "1933 Act Regulations") a supplement
dated [____________________] (the "Prospectus Supplement"), to the
prospectus dated [____________________] (the "Basic Prospectus"),
relating to the Offered Securities and the method of distribution
thereof. Such registration statement (No. [____________________])
including exhibits thereto and any information incorporated therein by
reference including "Computational Materials" and "ABS Term Sheets"
(collectively, the "Computational Materials and ABS Term Sheets") as
defined in the No-Action Letter of May 20, 1994 issued by the
Commission to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody
& Co. Incorporated and Kidder Structured Asset Corporation, the
No-Action Letter of May 27, 1994 issued by the Commission to the Public
Securities Association and the No-Action Letter of March 9, 1995 issued
by the Commission to the Public Securities Association (the "SEC
No-Action Letters"), as amended at the date hereof, is hereinafter
called the "Registration Statement"; and the Basic Prospectus and the
Prospectus Supplement and any information incorporated therein by
reference including Computational Materials and ABS Terms Sheets,
together with any amendment thereof or supplement thereto authorized by
the Company on or prior to the Closing Date for use in connection with
the offering of the Offered Securities, are hereinafter called the
"Prospectus". Any preliminary form of the Prospectus Supplement which
has heretofore been filed pursuant to Rule 424, or prior to the
effective date of the Registration Statement pursuant to Rule 402(a),
or 424(a) is hereinafter called a "Preliminary Prospectus Supplement."
(ii) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement
is in effect, and no proceedings for such purpose are pending or, to
the Company's knowledge, threatened by the Commission.
(iii) The Registration Statement and the Prospectus, as of
the date of the Prospectus Supplement, conform, and the Registration
Statement as of the effective date (the "Effective Date") and the
Prospectus, as of its date, each as revised, amended or supplemented
and filed with the Commission prior to the termination of the offering
of the Offered Securities, complied in all material respects to the
requirements of the Act and the 1933 Act Regulations, and the
Registration Statement, as of the Effective Date, did not, and as of
the Closing Date, will not, contain any untrue statement of a material
fact and did not and will not omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; and the Prospectus, as of the date of the Prospectus
Supplement did not, and as of the Closing Date, will not contain any
untrue statement of a material fact and did not and will not omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in the
Prospectus
2
<PAGE> 3
or any revision or amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the
Company by Morgan Stanley & Co. Incorporated specifically for use in
connection with the preparation of the Prospectus or any revision or
amendment thereof or supplement thereto, and any information in any
Computational Materials or ABS Term Sheets required to be provided by
the Underwriter to the Company pursuant to Section 4.2, except to the
extent that such information constitutes Pool Information. As used
herein, "Pool Information" means information with respect to the
assumed characteristics of the Assets and administrative and servicing
fees. The Company acknowledges that the Underwriter Information (as
defined herein) constitutes the only information furnished in writing
by you or on your behalf for use in connection with the preparation of
the Registration Statement or the Prospectus Supplement.
(iv) At or prior to the Closing Date, the direction by the
Company to the Trustee to execute, authenticate and deliver the Offered
Securities will have been duly authorized by the Company, and the
Offered Securities, when executed and authenticated in accordance with
the [_______________] Agreement, and delivered to and paid for by the
Underwriter in accordance with the terms of this Agreement will be duly
and validly issued and outstanding and entitled to the benefits of such
Agreement. Each Security of the classes indicated to be "mortgage
related securities" under the heading "Legal Investment" in the
Prospectus Supplement will, when issued, be a "mortgage related
security" as such term is defined in Section 3(a)(41) of the Exchange
Act.
(v) This Agreement has been duly authorized, executed and
delivered by the Company. At or prior to the Closing Date, the
[_______________] Agreement and [_______________] Agreement will have
been duly authorized, executed and delivered by the Company and will
conform in all material respects to the descriptions thereof contained
in the Prospectus and, assuming the valid execution and delivery
thereof by the other parties thereto, the [_______________] Agreement
and the [_______________] Agreement will constitute a legal, valid and
binding agreement of the Company enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights
generally, by general principles of equity and by the effect of the
exercise by the Trustee of certain remedial provisions, including
waivers, against the Assets.
(vi) 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 its properties
and conduct its business as described in the Prospectus and to enter
into and perform its obligations under the [_______________] Agreement
or the [_______________] Agreement, as applicable and this Agreement.
(vii) Each preliminary prospectus filed as part of the
Registration Statement as originally filed or as a part of any
amendment thereto, or filed pursuant to Rule 424 or Rule 462 under the
Act, complied as to form, when so filed, in all material respects with
the Act and the rules and regulations of the Commission thereunder.
3
<PAGE> 4
(viii) Neither the execution and delivery by the Company of,
nor the performance by the Company of its obligations under, this
Agreement, the [_______________] Agreement or the [_______________]
Agreement will contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement
or other instrument binding upon the Company that is material to the
Company or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary,
and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance
by the Company of its obligations under this Agreement, the
[_______________] Agreement or the [_______________] Agreement, except
such as may be required by the securities or "blue sky" laws of the
various states in connection with the offer and sale of the Offered
Securities or such other approvals as have been obtained.
(ix) There are no legal or governmental proceedings
pending or threatened to which the Company is a party or to which any
of the properties of the Company are subject that are required to be
described in the Registration Statement or the Prospectus and that are
not so described, nor are there any statutes, regulations, contracts or
other documents required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(x) At the time of execution and delivery of the
[_______________] Agreement and the [_______________] Agreement, (1)
the Company will own the Assets being transferred to the Trust Fund
pursuant thereto, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively,
"Liens"), except to the extent permitted in the related agreement, and
will not have assigned to any person other than the Trust Fund any of
its right, title or interest in the Assets, (2) the Company will have
the power and authority to transfer the Assets to the Trust Fund and to
transfer the Offered Securities to you, (3) upon execution and delivery
to the Trustee of the [_______________] Agreement and the
[_______________] Agreement, and delivery of the Offered Securities to
the Company, the Trust Fund will own the Assets free of Liens other
than Liens permitted by the related agreement or created or granted by
you and (4) upon payment and delivery of the Offered Securities to you,
you will acquire ownership of the Offered Securities, free of Liens
other than Liens permitted by the related agreement or created or
granted by you.
(xi) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement,
the [_______________] Agreement and [_______________] Agreement and the
Securities have been or will be paid by the Company at or prior to the
Closing Date.
(xii) There has not occurred any material adverse change,
or any development involving a prospective material adverse change, in
the condition, financial or otherwise,
4
<PAGE> 5
or in the earnings, business or operations of the Company, since
[____________________].
(xiii) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell, and the Underwriter agrees to purchase from the Company, the
respective actual or notional, as the case may be, amounts or percentage
interests set forth in [Schedule __] hereto in the respective classes of Offered
Securities at the respective purchase price for each such class set forth
therein.
3. Delivery and Payment. The Offered Securities shall be
delivered at the office, on the date and at the time specified in, [Schedule __]
attached hereto, which place, date and time may be changed by agreement between
the Underwriter and the Company (such date and time of delivery of and payment
for such Offered Securities being hereinafter referred to as the "Closing
Date"). Delivery of the Offered Securities (which Offered Securities shall also
be referred to herein as the "DTC Registered Securities") shall be made to you
through The Depository Trust Company ("DTC"), against payment by you of the
purchase prices thereof to or upon the order of the Company by wire transfer in
immediately available funds. The Company agrees to have the Offered Securities
available for inspection, checking and packaging by you in New York, New York
not later than [____________________] p.m., New York City time, on the business
day prior to the Closing Date.
4. Offering by Underwriter.
4.1 It is understood that the Underwriter proposes to offer the
Offered Securities for sale to the public as set forth in the Prospectus and
that you will not offer, sell or otherwise distribute the Offered Securities
(except for the sale thereof in exempt transactions) in any state in which the
Offered Securities are not exempt from registration under "blue sky" or state
securities laws (except where the Offered Securities will have been qualified
for offering and sale at your direction under such "blue sky" or state
securities laws).
4.2 It is understood that the Underwriter may prepare and provide
to prospective investors certain Computational Materials and ABS Term Sheets in
connection with the offering of the Offered Securities, subject to the following
conditions:
(a) All Computational Materials and ABS Term Sheets provided by
the Underwriter to prospective investors that are required to be filed pursuant
to the SEC No-Action Letters shall bear a legend on each page including the
following statement:
"THE INFORMATION CONTAINED HEREIN HAS BEEN PROVIDED BY
[____________________] NEITHER THE ISSUER OF THE SECURITIES NOR ANY OF
ITS AFFILIATES MAKES ANY REPRESENTATION AS TO THE ACCURACY OR
COMPLETENESS OF THE INFORMATION HEREIN.
5
<PAGE> 6
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."
In the case of Collateral Term Sheets (as defined in the SEC No-Action Letters),
such legend shall also include the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE DESCRIPTION
OF THE MORTGAGE POOL CONTAINED IN THE PROSPECTUS SUPPLEMENT RELATING TO
THE SECURITIES AND SUPERSEDES ALL INFORMATION CONTAINED IN ANY
COLLATERAL TERM SHEETS RELATING TO THE MORTGAGE POOL PREVIOUSLY
PROVIDED BY [____________________]."
Notwithstanding the foregoing, this subsection (a) will be satisfied if all
Computational Materials and ABS Term Sheets referred to therein bear a legend in
a form previously approved in writing by the Company.
(b) Any Computational Material and ABS Term Sheets are subject to
the review by and approval of the Company prior to their distribution to any
prospective investors and a copy of such Computational Material and ABS Term
Sheets as are delivered to prospective investors shall, in addition to the
foregoing delivery requirements, be delivered to the Company prior to delivery
to prospective investors.
(c) The Underwriter shall provide to the Company, for filing on
Form 8-K as provided in Section 5(h), copies (in such format as required by the
Company) of all Computational Materials and ABS Term Sheets prepared by it that
are required to be filed with the Commission pursuant to the SEC No-Action
Letters. The Underwriter may provide copies of the foregoing in a consolidated
or aggregate form that includes all information required to be filed. All
Computational Materials and ABS Term Sheets described in this Section 4.2(c)
must be provided to the Company not later than [____________________] a.m. New
York time one business day before filing thereof is required pursuant to the
terms of the SEC No-Action Letters. The Underwriter agrees that it will not
provide to any investor or prospective investor in the Offered Securities any
Computational Materials or ABS Term Sheets on or after the day on which
Computational Materials and ABS Term Sheets are required to be provided to the
Company pursuant to this Section 4.2(c) (other than copies of Computational
Materials or ABS Term Sheets previously submitted to the Company in accordance
with this Section 4.2(c) for filing pursuant to Section 5(h)), unless such
Computational Materials or ABS Term Sheets are preceded or accompanied by the
delivery of a Prospectus to such investor or prospective investor.
(d) All information included in the Computational Materials and
ABS Term Sheets shall be generated based on substantially the same methodology
and assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; provided, however, that the Computational
Materials and ABS Term Sheets may include information based on alternative
methodologies or assumptions if specified therein. If any Computational
Materials or
6
<PAGE> 7
ABS Term Sheets that are required to be filed were based on assumptions with
respect to the Assets that are incorrect, that differ from the final Pool
Information in any material respect or on Security structuring terms that were
revised in any material respect prior to the printing of the Prospectus, the
Underwriter shall prepare revised Computational Materials or ABS Term Sheets, as
the case may be, based on the final Pool Information and structuring
assumptions, circulate such revised Computational Materials and ABS Term Sheets
to all recipients of the preliminary versions thereof that indicated orally to
the Underwriter they would purchase all or any portion of the Securities, and
include such revised Computational Materials and ABS Term Sheets (marked, "as
revised") in the materials delivered to the Company pursuant to Section 4.2(c).
(e) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that (i) in the reasonable determination of the
Company and the Underwriter are not required to be filed pursuant to the SEC
No-Action Letters or (ii) have been determined to contain any material error or
omission, provided that, at the request of the Underwriter, the Company will
file Computational Materials or ABS Term Sheets that contain a material error or
omission if clearly marked and accompanied by corrected Computational Materials
or ABS Term Sheets that are marked "Revised". In the event that at any time when
a prospectus relating to the Offered Securities is required to be delivered
under the Act, any Computational Materials or ABS Term Sheets are determined, in
the reasonable judgment of the Company or the Underwriter, to contain a material
error or omission, the Underwriter shall prepare a corrected version of such
Computational Materials or ABS Term Sheets, shall circulate such corrected
version of such Computational Materials and ABS Term Sheets to all recipients of
the prior versions thereof that either indicated orally to the Underwriter they
would purchase all or any portion of the Offered Securities, or actually
purchased all or any portion thereof, and shall deliver copies of such corrected
Computational Materials and ABS Term Sheets (marked, "as corrected") to the
Company for filing with the Commission in a subsequent Form 8-K submission
(subject to the Company's obtaining an accountant's comfort letter in respect of
such corrected Computational Materials and ABS Term Sheets, which shall be at
the expense of the Underwriter) provided that if any such letter is required to
be revised solely because of a change in the Pool Information, any additional
expenses for such letter resulting from the change in Pool Information shall be
paid by the Company.
(f) If the Underwriter does not provide any Computational
Materials and ABS Term Sheets to the Company pursuant to Section 4.2(c), the
Underwriter shall be deemed to have represented, as of the Closing Date, that it
did not provide any prospective investors with any information in written or
electronic form in connection with the offering of the Offered Securities that
is required to be filed with the Commission in accordance with the SEC No-Action
Letters, and the Underwriter shall provide the Company with a certification to
that effect on the Closing Date.
4.3 The Underwriter represents and warrants and agrees with the
Company that as of the date hereof and as of the Closing Date that: (i) the
Computational Materials and ABS Term Sheets furnished by it to the Company
pursuant to Section 4.2(c) constitute (either in original, aggregate or
consolidated form) all of the materials furnished to prospective investors by
the Underwriter prior to the time of delivery thereof to the Company that are
required to be filed
7
<PAGE> 8
with the Commission with respect to the Offered Securities in accordance with
the SEC No-Action Letters, and such Computational Materials and ABS Term Sheets
comply with the requirements of the SEC No-Action Letters; (ii) on the date any
such Computational Materials and ABS Term Sheets with respect to such Securities
(or any written or electronic materials furnished to prospective investors on
which the Computational Materials and ABS Term Sheets are based) were last
furnished to each prospective investor and on the date of delivery thereof to
the Company pursuant to Section 4.2(c) and on the related Closing Date, such
Computational Materials and ABS Term Sheets (or materials) were accurate in all
material respects when read in conjunction with the Prospectus (taking into
account the assumptions explicitly set forth in the Computational Materials),
except to the extent of any errors therein that are caused by errors in the Pool
Information; (iii) the Underwriter has not and will not represent to potential
investors that any Computational Materials and ABS Term Sheets were prepared or
disseminated on behalf of the Company; and (iv) all Computational Materials and
ABS Term Sheets (or underlying materials distributed to prospective investors by
it on which the Computational Materials and ABS Term Sheets were based)
contained and will contain the legend in the form set forth in Section 4.2(a)
(or in such other form previously approved in writing by the Company).
Notwithstanding the foregoing, the Underwriter makes no representation
or warranty as to whether any Computational Materials or ABS Term Sheets (or any
written or electronic materials furnished to prospective investors on which the
Computational Materials or ABS Term Sheets are based) included or will include
any inaccurate statement resulting directly from any error contained in the Pool
Information.
5. Agreements. The Company agrees with the Underwriter that:
(a) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Securities for so long as any Offered
Securities remain outstanding, the Company will furnish you with a copy of each
such proposed amendment or supplement and will not file any such proposed
amendment or supplement to which the Underwriter reasonably objects.
(b) The Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424 under the Act by
means reasonably calculated to result in filing with the Commission pursuant to
said rule and, if necessary, within [___] days of the Closing Date, will
transmit for filing by means reasonably calculated to result in filing with the
Commission a report on Form 8-K for purposes of filing the [_______________]
Agreement, and will promptly advise the Underwriter when the Prospectus
Supplement has been so filed.
(c) Prior to the termination of the offering of the Offered
Securities, the Company will promptly advise the Underwriter (i) when any
amendment to the Registration Statement has become effective or any revision of
or supplement to the Prospectus has been so filed (unless such amendment,
revision or supplement does not relate to the Securities), (ii) of any request
by the Commission for any amendment of the Registration Statement or the
Prospectus or for any
8
<PAGE> 9
additional information (unless such request for additional information does not
relate to the Securities), (iii) of any written notification received by the
Company of the suspension of qualification of the Offered Securities, for sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose and (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or to the
knowledge of the Company, the threatening of any proceeding for that purpose.
The Company will use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof.
Except as otherwise provided in Section 5(d), the Company will not file prior to
the termination of such offering any amendment to the Registration Statement or
any revision of or supplement to the Prospectus (other than any such amendment,
revision or supplement which does not relate to the Securities) which shall be
disapproved by the Underwriter after reasonable notice and review of such
filing.
(d) If at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act (i) any event occurs as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein in the light of the circumstances under which
they were made not misleading, or (ii) it shall be necessary to revise, amend or
supplement the Prospectus to comply with the Act or the rules and regulations of
the Commission thereunder, the Company promptly will notify the Underwriter and
will, upon the request of the Underwriter, or may, after consultation with the
Underwriter, prepare and file with the Commission a revision, amendment or
supplement which will correct such statement or omission or effect such
compliance, and furnish without charge to the Underwriter as many copies as the
Underwriter may from time to time reasonably request of an amended Prospectus or
a supplement to the Prospectus which will correct such statement or omission or
effect such compliance.
(e) The Company will furnish to the Underwriter and counsel to the
Underwriter, without charge, conformed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus relating
to the Offered Securities is required under the Act, as many copies of the
Prospectus, any documents incorporated by reference therein and any revisions or
amendments thereof or supplements thereto as may be reasonably requested.
(f) The Company will endeavor to arrange for the qualification of
the Securities for sale under the laws of such jurisdictions as you may
reasonably designate and will maintain such qualification in effect so long as
required for the initial distribution of the Securities; 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 so
subject.
(g) Whether or not the transactions contemplated in the
[_______________] Agreement were consummated or this Agreement is terminated,
the Company shall pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel in connection with the
registration and delivery of the Offered Securities under the Act and all other
fees or
9
<PAGE> 10
expenses in connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments and
supplements to any of the foregoing, including all printing costs associated
therewith, and the mailing and delivering of copies thereof to the Underwriter
and dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Offered Securities to the
Underwriter, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any "blue sky" memorandum in connection with the
offer and sale of the Offered Securities under state securities laws and all
expenses in connection with the qualification of the Offered Securities for
offer and sale under state securities laws as provided in Section 5(f),
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriter in connection with such qualification and in connection with the
"blue sky" memorandum, (vi) all filing fees and disbursements of counsel for the
Underwriter incurred in connection with any review and qualification of the
offering by the National Association of Securities Dealers, Inc., (v) the cost
of printing the Offered Securities, (vi) the costs and charges of any transfer
agent, registrar or depositary, and (vii) all other costs and expenses incident
to the performance of the obligations of the Company hereunder for which
provision is not otherwise made in this Section.
(h) So long as any Offered Securities are outstanding, upon
request of the Underwriter, the Company will, or will cause the Master Servicer
to, furnish to the Underwriter, as soon as available, a copy of (i) the annual
statement of compliance delivered by the Master Servicer to the Trustee under
the [_______________] Agreement, (ii) the annual independent public accountants'
servicing report furnished to the Trustee pursuant to the [_______________]
Agreement, (iii) each report of the Company regarding the Offered Securities
filed with the Commission under the Exchange Act or mailed to the holders of the
Offered Securities and (iv) from time to time, such other information concerning
the Offered Securities which may be furnished by the Company or the Master
Servicer without undue expense and without violation of applicable law.
(i) The Company shall file the Computational Materials and ABS
Term Sheets (if any) provided to it by the Underwriter under Section 4.2(c) with
the Commission pursuant to a Current Report on Form 8-K within the time periods
required by the SEC No-Action Letters; provided, however, that prior to such
filing of the Computational Materials and ABS Term Sheets (other than any
Collateral Term Sheets that are not based on the Pool Information) by the
Company, the Underwriter must comply with its obligations pursuant to Section
4.2 and the Company must receive a letter from PricewaterhouseCoopers L.L.P.,
certified public accountants, satisfactory in form and substance to the Company
and its counsel, to the effect that such accountants have performed certain
specified procedures, all of which have been agreed to by the Company, as a
result of which they determined that all information that is included in the
Computational Materials and ABS Term Sheets (if any) provided by the Underwriter
to the Company for filing on Form 8-K, as provided in Section 4.2 and this
Section 5(i), is accurate except as to such matters that are not deemed by the
Company to be material. The foregoing letter shall be at the sole expense of the
Company. The Company shall file any corrected Computational Materials or ABS
Term Sheets described in Section 4.2(e) as soon as practicable following receipt
thereof.
10
<PAGE> 11
6. Conditions to the Obligations of the Underwriter. The
obligation of the Underwriter to purchase the Offered Securities to be purchased
by it shall be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company contained herein as of
the date hereof and as of the Closing Date, to the accuracy of the statements of
the Company made in any officer's certificate pursuant to the provisions hereof,
to the performance in all material respects by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened, and the Prospectus
Supplement shall have been filed or transmitted for filing by means reasonably
calculated to result in a filing with the Commission pursuant to Rule 424 under
the Act.
(b) The Company shall have furnished to the Underwriter a
certificate, dated the Closing Date, of the Company, signed by a vice president
of the Company, to the effect that the signer of such certificate has carefully
examined the Registration Statement, the Prospectus, this Agreement, and the
[_______________] Agreement, as applicable, and that:
(i) The representations and warranties of the Company in
this Agreement and the [_______________] Agreement
are true and correct in all material respects on and
as of the Closing Date with the same effect as if
made on the Closing Date, and the Company has
complied with all agreements and satisfied all the
conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no
proceedings for that purpose have been instituted and
are pending or, to his knowledge, have been
threatened as of the Closing Date;
(iii) Nothing has come to the attention of such person that
would lead him to believe that the Prospectus (other
than any Computational Materials or ABS Term Sheets
incorporated therein by reference) contains any
untrue statement of a material fact or omits to state
any material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; and
(iv) Since [____________________], there has been no
material adverse change (not in the ordinary course
of business) in connection with the Company.
(c) The Company shall have furnished or caused to have been
furnished to the Underwriter a certificate, dated the Closing Date, of the Asset
Seller, signed by a vice president or an assistant vice president of the Asset
Seller, to the effect that the signer of such certificate has carefully examined
the Prospectus and nothing has come to the attention of such person that would
lead him to believe that the Prospectus contains any untrue statement of a
material fact with respect to the Asset Seller or the Assets or omits to state
any material fact with respect to
11
<PAGE> 12
the Asset Seller or the Assets necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(d) The Company shall have furnished to you an opinion, dated the
Closing Date, of Hunton & Williams, counsel to the Company, substantially to the
effect that:
(i) The Registration Statement and any amendments thereto
have become effective under the Act; to the best
knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has
been issued and not withdrawn, no proceedings for
that purpose have been instituted or threatened and
not terminated; and the Registration Statement, the
Prospectus and each amendment or supplement thereto,
as of their respective effective or issue dates
(other than the financial and statistical information
contained therein as to which such counsel need
express no opinion), complied as to form in all
material respects with the applicable requirements of
the Act and the rules and regulations of the
Commission thereunder;
(ii) To the best knowledge of such counsel, there are not
material contracts, indentures or other documents of
a character required to be described or referred to
in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement
other than those described or referred to therein or
filed or incorporated by reference as exhibits
thereto;
(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;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company;
(v) Each of the [_______________] Agreement and the
[_______________] Agreement has been duly authorized,
executed and delivered by the Company and, assuming
the due authorization, execution and delivery by
other parties thereto, constitutes a valid, legal and
binding agreement of the Company, is enforceable
against the Company in accordance with its terms,
subject as to enforceability to bankruptcy,
insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally,
to general principals of equity regardless of whether
enforcement is sought in a proceeding in equity or at
law and to the effect of the exercise by the Trustee
of certain remedial provisions, including waivers,
against the Assets;
(vi) The Offered Securities have been duly authorized and,
assuming authentication and delivery in the manner
contemplated in the [_______________] Agreement, and
upon delivery by the Company of the Offered
Securities to be purchased by the Underwriter and
payment by the Underwriter of the purchase price
therefor in the manner contemplated by this
Agreement, the Offered Securities will be (A) validly
issued and outstanding and entitled to the benefits
12
<PAGE> 13
of the [_______________] Agreement and (B) free and
clear of any lien, pledge, encumbrance or other
security interest other than one permitted by the
[_______________] Agreement or created or granted by
the Underwriter;
(vii) To the best knowledge of such counsel, no consent,
approval, authorization or order of any [New York,
Delaware] or federal governmental agency or body or
any [New York, Delaware] or federal court is required
for the consummation by the Company of the
transactions contemplated by the terms of this
Agreement, the [_______________] Agreement or the
[_______________] Agreement, except such as may be
required under the "blue sky" or state securities
laws of any jurisdiction in connection with the
offering, sale or acquisition of the Offered
Securities, any recordations of the assignment of the
Assets to the Trustee (to the extent such
recordations are required pursuant to the
[_______________] Agreement) that have not yet been
completed and such other approvals as have been
obtained;
(viii) The sale of the Offered Securities to be purchased by
the Underwriter pursuant to this Agreement and the
consummation of any of the transactions contemplated
by the terms of the [_______________] Agreement,
[_______________] Agreement or this Agreement do not
conflict with or result in a breach or violation of
any material term or provision of, or constitute a
default under, the certificate of incorporation of
the Company, or to the best knowledge of such
counsel, any indenture or other agreement or
instrument to which the Company is a party or by
which it is bound, or any New York, Delaware or
federal statute or regulation applicable to the
Company or an order of any New York, Delaware or
federal court, regulatory body, administrative agency
or governmental body having jurisdiction over the
Company;
(ix) The Offered Securities, the [_______________]
Agreement and the [_______________] Agreement conform
to the descriptions thereof contained in the
Prospectus;
(x) The statements in the Prospectus and the Prospectus
Supplement, as the case may be, under the headings
"Federal Income Tax Consequences" and "ERISA
Considerations," to the extent that they constitute
matters of New York or federal law or legal
conclusions with respect thereto, have been reviewed
by such counsel and are correct in all material
respects;
(xi) The Securities indicated under the heading
["____________________"] in the Prospectus Supplement
to be "mortgage related securities" will be mortgage
related securities, as defined in Section 3(a)(41) of
the Exchange Act, so long as such Securities are
rated in one of the two highest rating categories by
at least one nationally recognized statistical rating
organization;
(xii) The [_______________] Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as
amended, and the Trust Fund created by the
13
<PAGE> 14
[_______________] Agreement is not required to be
registered under the Investment Company Act of 1940,
as amended; and
(xiii) The Trust Fund as described in the Prospectus
Supplement and the [_______________] Agreement will
qualify as one or more "real estate mortgage
investment conduits" (each, a "REMIC") within the
meaning of Section 860D of the Internal Revenue Code
of 1986, as amended (the "Code"), assuming: (i) an
election is made to treat various portions of the
Trust Fund as a REMIC, (ii) compliance with the
[_______________] Agreement and (iii) compliance with
changes in the law, including any amendments to the
Code or applicable Treasury regulations thereunder.
Such counsel shall also state that nothing has come to its attention
that would lead such counsel to believe that the Registration Statement, at the
time it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as of the
date of the Prospectus Supplement, and on the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits 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; it being
understood that such counsel need express no view as to (i) financial and
statistical information contained therein or (ii) any description in the
Prospectus of any third party providing credit enhancement to the Securities.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the
[_______________] Agreement. Such opinion may assume the due authorization,
execution and delivery of the instruments and documents referred to therein by
the parties thereto other than the Company or its affiliates. Such opinion may
be qualified as an opinion only on the corporate laws of the [State of Delaware,
the laws of the State of New York] and the federal law of the United States. To
the extent that such counsel relies upon the opinion of other counsel in
rendering any portion of its opinion, the opinion of such other counsel shall be
attached to and delivered with the opinion of such counsel that is delivered to
the Underwriter.
(e) The Underwriter shall have received from their counsel such
opinion or opinions, dated the Closing Date, with respect to the issuance and
sale of the Offered Securities, the Registration Statement and the Prospectus,
and such other related matters as you may reasonably require.
(f) You shall have received from [____________________], certified
public accountants, (a) a letter dated the date hereof and satisfactory in form
and substance to you and your counsel, to the effect that they have performed
certain specified procedures, all of which have been agreed to by you, as a
result of which they determined that certain information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement under the
captions "Description of the Mortgage Loans", "Description of the Certificates"
and "Yield, Prepayment and Maturity Considerations" agrees with the records of
the Company and the Asset
14
<PAGE> 15
Seller excluding any questions of legal interpretation and (b) the letter
prepared pursuant to Section 5(i).
(g) On or prior to the Closing Date, there shall not have occurred
any change, or any development involving a prospective change, in or affecting
the business or properties of the Asset Seller which in your reasonable judgment
materially impairs the investment quality of the Offered Securities so as to
make it impractical or inadvisable to proceed with the public offering or the
delivery of the Offered Securities as contemplated by the Prospectus.
(h) The Offered Securities shall be rated not lower than the
required ratings set forth under the heading "Rating" in the Prospectus
Supplement, and on the Closing Date such ratings shall not have been rescinded
and no public announcement shall have been made that any such required rating of
the Offered Securities has been placed under review (otherwise than for possible
upgrading).
(i) The Underwriter shall have received copies of any opinions of
counsel to the Company supplied to the rating organizations relating to certain
matters with respect to the Securities. Any such opinions shall be dated the
Closing Date and addressed to the Underwriter or accompanied by reliance letters
addressed to the Underwriter.
(j) All Classes of Securities being publicly offered by the
Underwriter shall have been issued and paid for pursuant to the terms of this
Agreement.
(k) The Trustee shall have furnished to the Underwriter an opinion
dated the Closing Date, of counsel to the Trustee (who may be an employee of the
Trustee), substantially to the effect that:
(i) The Trustee has full corporate power and authority to
execute and deliver the [_______________] Agreement
and to perform its obligations thereunder and to
execute, countersign and deliver the Securities.
(ii) The [_______________] Agreement has been duly
authorized, executed and delivered by the Trustee.
(iii) The [_______________] Agreement is a legal, valid and
binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms,
subject to applicable bankruptcy, insolvency,
reorganization, moratorium, receivership,
conservatorship and similar laws affecting the rights
of creditors generally, and subject, as to
enforceability, to general principles of equity,
regardless of whether such enforcement is considered
in a proceeding at law or equity.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the [_______________] Agreement. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other
15
<PAGE> 16
than the Trustee or its affiliates. Such opinion may be qualified as an opinion
only on the laws of the State of New York and federal law of the United States.
To the extent that such counsel relies upon the opinion of other counsel in
rendering any portion of its opinion, the opinion of such other counsel shall be
attached to and delivered with the opinion of such counsel that is delivered to
the Underwriter.
(l) The Asset Seller shall have sold the Assets to the Company
pursuant to the [_______________] Agreement.
(m) The Company shall have furnished to the Underwriter such
further information, certificates and documents as the Underwriter may
reasonably have requested, and all proceedings in connection with the
transactions contemplated by this Agreement and all documents incident hereto
shall be in all material respects reasonably satisfactory in form and substance
to the Underwriter and its counsel.
(n) Since [____________________], there shall have been no
material adverse change (not in the ordinary course of business) in the judgment
of the Underwriter in the condition of the Company that makes it, in the
judgment of the Underwriter, impracticable to market the Securities on the terms
and in the manner contemplated by the Prospectus.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
this Agreement and all obligations of the Underwriter hereunder may be canceled
at, or at any time prior to, the Closing Date by the Underwriter. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
7. Indemnification and Contribution. The Company and Union
Planters Bank, National Association agree, jointly and severally, to indemnify
and hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Securities Exchange Act of 1934 (the "Exchange Act"), from and against any
and all losses, claims, damages and liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act, or other
Federal or State Statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) were caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement as originally filed or in
any amendment thereof or other filing incorporated by reference therein,
including Computational Materials and ABS Term Sheets, or in any preliminary
prospectus or the Prospectus or incorporated by reference therein, including
Computational Materials and ABS Term Sheets (if used within the period mentioned
in Section 5(a) and as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein,
in light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities were caused by any such
untrue statement or omission or alleged untrue statement or omission made
therein based upon and in conformity with (i) the information furnished in
writing to the Company by [____________________]
16
<PAGE> 17
specifically for use in connection with the preparation of the Registration
Statement, any preliminary prospectus or the Prospectus or any revision or
amendment thereof or supplement thereto and (ii) any information in any
Computational Materials or ABS Term Sheets required to be provided by the
Underwriter to the Company pursuant to Section 4.2, except to the extent such
material misstatement or omission is based upon the Pool Information (such
information, the "Underwriter Information"). Such indemnity with respect to any
Corrected Statement (as defined below) in such Prospectus (or supplement
thereto) shall not inure to the benefit of the Underwriter (or any person
controlling the Underwriter) from whom the person asserting any loss, claim,
damage or liability purchased the Offered Securities that are the subject
thereof if such person did not receive a copy of the supplement to such
Prospectus at or prior to the confirmation of the sale of such Securities and
the untrue statement or omission of material fact contained in such Prospectus
(or supplement thereto) was corrected (a "Corrected Statement") in such other
supplement and such supplement was furnished by the Company to the Underwriter
prior to the delivery of such confirmation.
The Underwriter agrees to indemnify and hold harmless the Company and
its directors and officers who sign the Registration Statement and any person
controlling the Company within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to the Underwriter, but only with reference to (i) information
relating to the Underwriter furnished in writing to the Company by the
Underwriter specifically for use in connection with the preparation of the
Registration Statement, any preliminary prospectus or the Prospectus or any
revision or amendment thereof or supplement thereto and (ii) any Computational
Materials, the ABS Term Sheets or the Collateral Term Sheets, as applicable,
except to the extent of any errors in the Computational Materials or ABS Term
Sheets that are caused by errors in the Pool Information.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by [____________________] in the case of parties
indemnified pursuant to
17
<PAGE> 18
the first paragraph of this Section 7 and by the Company in the case of parties
indemnified pursuant to the second paragraph of this Section 7. 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 agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
any indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than [___] 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. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party under the first or second paragraph of this
Section 7 or is insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each 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 (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand, and by the Underwriter on the
other, from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the 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 Underwriter on the other, in connection
with the offering of the Offered Securities shall be deemed to be in the same
respective proportions that the total net proceeds from the offering of the
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriter in
respect thereof respectively, bear to the aggregate public offering price of the
Offered Securities. 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, Union Planters Bank, National Association and the
Underwriter agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation or by any
other method of allocation which does not take account of the
18
<PAGE> 19
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, the Underwriter shall not be required to
contribute any amount in excess of the total public offering price of the
Offered Securities purchased by the Underwriter under this Agreement, less the
amount of any damages that the Underwriter has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 7 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of the
Underwriter or any person controlling the Underwriter or by on behalf of the
Company, its directors or officers or any person controlling the Company and
(iii) acceptance of any payment for any of the Offered Securities.
8. Termination. This Agreement shall be subject to termination in
[____________________] absolute discretion, by notice given to the Company, if
(a) after the execution and delivery of this Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on or
by, as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Underwriter, is
material and adverse and such event singly or together with any other such
event, makes it, in the judgment of the Underwriter, impracticable to market the
Offered Securities on the terms and in the manner contemplated in the Prospectus
or (b) if the sale of the Securities provided for herein is not consummated
because of any failure or refusal on the apart of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement. If you terminate this Agreement in accordance with this Section 8 or
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, the Company will
reimburse you for all reasonable out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been reasonably incurred by
the Underwriter in connection with the proposed purchase and sale of the
Securities.
19
<PAGE> 20
9. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of the Company, its officers and the Underwriter set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any termination of this Agreement, any investigation made by or on
behalf of the Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 7 and delivery of and payment for the
Offered Securities.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
14. Notices. All communications hereunder shall be in writing and
effective only on receipt and, if sent to the Underwriter, shall be delivered to
the address specified on the signature page hereof; or if sent to the Company,
shall be delivered to Union Planters Home Equity Corp., 7130 Goodlett Farms
Parkway, Cordova, Tennessee 38018 (telephone (901) 580-6000; telecopy (901)
580-6923) attention of [____________________], with a copy (which copy shall not
constitute notice hereunder) to Kevin J. Buckley, Esq., Hunton & Williams, 951
East Byrd Street, Riverfront Plaza, East Tower, Richmond, Virginia 23219
(telephone (804) 788-8200; telecopy (804) 788-8218).
15. Miscellaneous. Time shall be of the essence of this Agreement.
This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof. Neither this Agreement nor
any term hereof may be change, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought.
20
<PAGE> 21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
by and among the Company and the Underwriter.
Very truly yours,
UNION PLANTERS HOME EQUITY CORP.
By:
-----------------------------------
Name: [____________________]
Title: President
UNION PLANTERS BANK, NATIONAL
ASSOCIATION
By:
----------------------------------
Name: [____________________]
Title: Executive Vice President
The foregoing Agreement is hereby confirmed and accepted.
Accepted, [____________________]
[____________________]
By
By:
------------------------
Name:
Title:
21
<PAGE> 22
SCHEDULE I
Offered Securities
<TABLE>
Principal Amount/Notional Amount Purchase Price
-------------------------------- --------------
Class
-----
<S> <C> <C>
A-1 $[ ] [ ]%
A-2 $[ ] [ ]%
</TABLE>
22
<PAGE> 23
SCHEDULE II
Non-Offered Securities
<TABLE>
<CAPTION>
Class Principal Amount
----- ----------------
<S> <C>
X-1 *
[X-2 *]
[B-1 $[ ]
B-2 $[ ]
B-3 $[ ]
B-4 $[ ]
B-5 $[ ]
B-6 $[ ]
PO $[ ]
R $[ ]]
</TABLE>
------------
* The Class [____][and the Class [___]] Certificates are interest only
certificates and have no principal balance. For any Distribution Date, the Class
[___] [and the Class [___]] [_________] together have a Notional Principal
Amount equal to the aggregate of the Principal Balances of the Non-Discount
Mortgage Loans at the beginning of the related Due Period (or as of the Cut-Off
Date in the case of the first Distribution Date).
23
