UNDERWRITING AGREEMENT
EXHIBIT 1.1
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AMERIQUEST MORTGAGE SECURITIES INC.
$____________ (Approximately)
AQ Mortgage Pass-Through Certificates, Series ____-_
Class A $____________ _____%
Class R $____________ _____%
UNDERWRITING AGREEMENT
----------------------
----------------,
----
[Underwriter]
______________________
______________________
Ladies and Gentlemen:
Ameriquest Mortgage Securities Inc., a Delaware corporation
(the
"Company"), proposes to sell to you (also referred to herein as the
"Underwriter") AQ Mortgage Pass-Through Certificates, Series ____-__,
Class A
and Class R Certificates other than a de minimis portion thereof
(collectively,
the "Certificates"), having the aggregate principal amounts and Pass-
Through
Rates set forth above. The Certificates, together with the Class M and
Class B
Certificates of the same series, will evidence the entire beneficial
interest in
the Trust Fund (as defined in the Pooling and Servicing Agreement
referred to
below) consisting primarily of a pool (the "Pool") of conventional,
fixed-rate,
one- to four-family residential mortgage loans (the "Mortgage Loans") as
described in the Prospectus Supplement (as hereinafter defined) to be
sold by
the Company. A de minimis portion of the Class R Certificates will not
be sold
hereunder and will be held by the Trustee.
The Certificates will be issued pursuant to a pooling and
servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of
__________________, ____ (the "Cut-off Date") among the Company, as
seller,
[Name of Master Servicer], as master servicer (the "Master Servicer"),
and
___________________________________________, as trustee (the "Trustee").
The
Certificates are described more fully in the Basic Prospectus and the
Prospectus
Supplement (each as hereinafter defined) which the Company has furnished
to you.
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1. REPRESENTATIONS, WARRANTIES AND COVENANTS.
1.1 The Company represents and warrants to, and agrees
with
you that:
(a) The Company has filed with the Securities
and
Exchange Commission (the "Commission") a registration statement
(No.
33-_____) on Form S-3 for the registration under the Securities
Act of
1933, as amended (the "Act"), of Mortgage Pass-Through
Certificates and
Mortgage-Backed Notes (issuable in series), including the
Certificates,
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 Certificates and the
method of
distribution thereof. Such registration statement (No. 33-
_____)
including exhibits thereto and any information incorporated
therein by
reference, 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,
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 Certificates, 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."
(b) The Registration Statement has become
effective,
and the Registration Statement as of the effective date (the
"Effective
Date"), and the Prospectus, as of the date of the Prospectus
Supplement, complied in all material respects with the
applicable
requirements of the Act and the 1933 Act Regulations; and the
Registration Statement, as of the Effective Date, did not
contain any
untrue statement of a material fact and did not omit to state
any
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 an untrue statement of a material fact and did not
and
will not omit to state a material fact necessary in order to
make the
statements therein, in the light of the circumstances under
which they
were made, not misleading; provided, however, that the Company
makes no
representations or warranties as to the information contained
in or
omitted from the Registration Statement or the Prospectus or
any
amendment thereof or supplement thereto relating to the
information
identified by underlining or other highlighting as shown in
Exhibit E
(the "Excluded Information"); and provided, further, that the
Company
makes no representations or warranties as to either (i) any
information
in any Computational Materials or ABS Term Sheets (each as
hereinafter
defined) required to be provided by the Underwriter to the
Company
pursuant to Section 4.2, except to the extent of any
information set
forth therein that constitutes Pool Information (as defined
below), or
(ii) as to any information contained in or omitted from the
portions of
the
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Prospectus identified by underlining or other highlighting as
shown in
Exhibit F (the "Underwriter Information"). As used herein,
"Pool
Information" means information with respect to the
characteristics of
the Mortgage Loans and administrative and servicing fees, as
provided
by or on behalf of the Company to the Underwriter in final form
and set
forth in the Prospectus Supplement. The Company acknowledges
that,
except for any Computational Materials, the Underwriter
Information
constitutes the only information furnished in writing by you or
on your
behalf for use in connection with the preparation of the
Registration
Statement, any preliminary prospectus or the Prospectus, and
you
confirm that the Underwriter Information is correct.
(c) The Company has been duly incorporated and is
validly
existing as a corporation in good standing under the laws of
the State
of Delaware and has the requisite corporate power to own its
properties
and to conduct its business as presently conducted by it.
(d) This Agreement has been duly authorized, executed
and
delivered by the Company.
(e) As of the Closing Date (as defined herein) the
Certificates will conform in all material respects to the
description
thereof contained in the Prospectus and the representations and
warranties of the Company in the Pooling and Servicing
Agreement will
be true and correct in all material respects.
1.2 The Underwriter represents and warrants to and
agrees with
the Company that:
(a) No purpose of the Underwriter relating to
the
purchase of any of the Class R Certificates by the Underwriter
is or
will be to enable the Company to impede the assessment or
collection of
any tax.
(b) The Underwriter has no present knowledge
or
expectation that it will be unable to pay any United States
taxes owed
by it so long as any of the Certificates remain outstanding.
(c) The Underwriter has no present knowledge
or
expectation that it will become insolvent or subject to a
bankruptcy
proceeding for so long as any of the Certificates remain
outstanding.
(d) No purpose of the Underwriter relating to
any
sale of any of the Class R Certificates by the Underwriter will
be to
enable it to impede the assessment or collection of tax. In
this
regard, the Underwriter hereby represents to and for the
benefit of the
Company that the Underwriter intends to pay taxes associated
with
holding the Class R Certificates, as they become due, fully
understanding that it may incur tax liabilities in excess of
any cash
flows generated by the Class R Certificates.
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(e) The Underwriter will, in connection with
any
transfer it makes of any of the Class R Certificates, obtain
from its
transferee the affidavit required by Section 5.02(g)(i)(B)(I)
of the
Pooling and Servicing Agreement, will not consummate any such
transfer
if it knows or believes that any representation contained in
such
affidavit is false and will provide the Trustee with the
Certificate
required by Section 5.02(g)(i)(B)(II) of the Pooling and
Servicing
Agreement.
(f) The Underwriter hereby certifies that (i)
with
respect to any classes of Certificates issued in authorized
denominations or Percentage Interests of less than $______ or
__%, as
the case may be, the fair market value of each such Certificate
sold to
any person on the date of initial sale thereof by the
Underwriter will
not be less than $_______, and (ii) with respect to each class
of
Certificates to be maintained on the book-entry records of The
Depository Trust Company ("DTC"), the interest in each such
class of
Certificates sold to any person on the date of initial sale
thereof by
the Underwriter will not be less than an initial Certificate
Principal
Balance of $______.
(g) The Underwriter will use its best
reasonable
efforts to cause Trepp & Co. to issue a commitment letter,
prior to the
Closing Date, to DTC stating that Trepp & Co. will value the
DTC
Registered Certificates (hereinafter defined) on an ongoing
basis
subsequent to the Closing Date.
(h) The Underwriter will have funds available
at
__________________ _______________, in the Underwriter's
account at
such bank at the time all documents are executed and the
closing of the
sale of the Certificates is completed, except for the transfer
of funds
and the delivery of the Certificates. Such funds will be
available for
immediate transfer into the account of the Company maintained
at such
bank.
(i) As of the date hereof and as of the
Closing Date,
the Underwriter has complied with all of its obligations
hereunder
including Section 4.2, and, with respect to all Computational
Materials
and ABS Term Sheets provided by the Underwriter to the Company
pursuant
to Section 4.2, if any, such Computational Materials and ABS
Term
Sheets are accurate in all material respects when read in
conjunction
with the Prospectus Supplement (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). The Computational Materials and ABS Term Sheets
provided
by the Underwriter to the Company constitute a complete set of
all
Computational Materials and ABS Term Sheets that are required
to be
filed with the Commission.
1.3 The Underwriter covenants and agrees to pay
directly, or
reimburse the Company upon demand for (i) any and all taxes (including
penalties
and interest) owed or asserted to be owed by the Company as a result of
a claim
by the Internal Revenue Service that the transfer of any of the Class R
Certificates to the Underwriter hereunder or any transfer thereof by the
Underwriter may be disregarded for federal tax purposes and (ii) any and
all
losses, claims, damages and liabilities, including attorney's fees and
expenses,
arising out of any failure of the Underwriter
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to make payment or reimbursement in connection with any such assertion
as
required in (i) above. In addition, the Underwriter acknowledges that on
the
Closing Date immediately after the transactions described herein it will
be the
owner of the Class R Certificates for federal tax purposes, and the
Underwriter
covenants that it will not assert in any proceeding that the transfer of
the
Class R Certificates from the Company to the Underwriter should be
disregarded
for any purpose.
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 to you, and you agree to purchase from the Company, the
Certificates (other than for a de minimis portion of the Class R
Certificates,
which shall be transferred by the Company to the Trustee) at a price
equal to
__________% of the aggregate principal balance of the Certificates as of
the
Closing Date. There will be added to the purchase price of the
Certificates an
amount equal to interest accrued thereon from the Cut-off Date to but
not
including the Closing Date. The purchase price for the Certificates was
agreed
to by the Company in reliance upon the transfer from the Company to the
Underwriter of the tax liabilities associated with the ownership of the
Class R
Certificates.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Certificates
shall be made at the office of _______________________ at
___________________
time, on ______________, ____ or such later date as you shall designate,
which
date and time may be postponed by agreement between you and the Company
(such
date and time of delivery and payment for the Certificates being herein
called
the "Closing Date"). Delivery of the Certificates (except for the Class
R
Certificates (the "Definitive Certificates")) shall be made to you
through the
Depository Trust Company ("DTC") (such Certificates, the "DTC Registered
Certificates"), and delivery of the Definitive Certificates shall be
made in
registered, certified form, in each case against payment by you of the
purchase
price thereof to or upon the order of the Company by wire transfer in
immediately available funds. The Definitive Certificates shall be
registered in
such names and in such denominations as you may request not less than
two
business days in advance of the Closing Date. The Company agrees to have
the
Definitive Certificates available for inspection, checking and packaging
by you
in New York, New York not later than ___________ on the business day
prior to
the Closing Date.
4. OFFERING BY UNDERWRITER.
4.1 It is understood that you propose to offer the
Certificates for sale to the public as set forth in the Prospectus and
you agree
that all such offers and sales by you shall be made in compliance with
all
applicable laws and regulations.
4.2 It is understood that you may prepare and provide
to
prospective investors certain Computational Materials (as defined below)
in
connection with your offering of the Certificates, subject to the
following
conditions:
(a) The Underwriter shall comply with all
applicable
laws and regulations in connection with the use of
Computational
Materials, including 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, as
made
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applicable to other issuers and underwriters by the Commission
in
response to the request of the Public Securities Association
dated May
24, 1994 (collectively, the "Kidder/PSA Letter") as well as the
PSA
Letter referred to below. The Underwriter shall comply with all
applicable laws and regulations in connection with the use of
ABS Term
Sheets, including the No-Action Letter of February 17, 1995
issued by
the Commission to the Public Securities Association (the "PSA
Letter"
and, together with the Kidder/PSA Letter, the "No-Action
Letters").
(b) For purposes hereof, "Computational
Materials" as
used herein shall have the meaning given such term in the No-
Action
Letters, but shall include only those Computational Materials
that have
been prepared or delivered to prospective investors by or at
the
direction of the Underwriter. For purposes hereof, "ABS Term
Sheets"
and "Collateral Term Sheets" as used herein shall have the
meanings
given such terms in the PSA Letter but shall include only those
ABS
Term Sheets or Collateral Term Sheets that have been prepared
or
delivered to prospective investors by or at the direction of
the
Underwriter.
(c) All Computational Materials and ABS Term
Sheets
provided to prospective investors that are required to be filed
pursuant to the No-Action Letters shall bear a legend on each
page
including the following statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY
[Underwriter]. NEITHER THE ISSUER OF THE CERTIFICATES
NOR ANY
OF ITS AFFILIATES MAKES ANY REPRESENTATION AS TO THE
ACCURACY
OR COMPLETENESS OF THE INFORMATION HEREIN. 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, 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 CERTIFICATES AND [Except
with
respect to the initial Collateral Term Sheet prepared
by the
Underwriter] SUPERSEDES ALL INFORMATION CONTAINED IN
ANY
COLLATERAL TERM SHEETS RELATING TO THE MORTGAGE POOL
PREVIOUSLY PROVIDED BY [the Underwriter]."
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The Company shall have the right to require additional specific
legends
or notations to appear on any Computational Materials or ABS
Term
Sheets, the right to require changes regarding the use of
terminology
and the right to determine the types of information appearing
therein.
Notwithstanding the foregoing, this subsection (c) will be
satisfied if
all such Computational Materials and ABS Term Sheets bear a
legend in
the form set forth in Exhibit I hereto.
(d) The Underwriter shall provide the Company
with
representative forms of all Computational Materials and ABS
Term Sheets
prior to their first use, to the extent such forms have not
previously
been approved by the Company for use by the Underwriter. The
Underwriter shall provide to the Company, for filing on Form 8-
K as
provided in Section 5.9, copies (in such format as required by
the
Company) of all Computational Materials that are required to be
filed
with the Commission pursuant to the No-Action Letters. The
Underwriter
may provide copies of the foregoing in a consolidated or
aggregated
form including all information required to be filed. All
Computational
Materials and ABS Term Sheets described in this subsection (d)
must be
provided to the Company not later than 10:00 a.m. New York time
one
business day before filing thereof is required pursuant to the
terms of
this Agreement. The Underwriter agrees that it will not provide
to any
investor or prospective investor in the Certificates 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(d) (other than copies of
Computational Materials or ABS Term Sheets previously submitted
to the
Company in accordance with this Section 4.2(d) for filing
pursuant to
Section 5.9), unless such Computational Materials or ABS Term
Sheets
are preceded or accompanied by the delivery of a Prospectus to
such
investor or prospective investor.
(e) All information included in the
Computational
Materials 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
that the
Computational Materials and ABS Term Sheets or ABS Term Sheets,
as the
case may be, may include information based on alternative
assumptions
if specified therein. If any Computational Materials or ABS
Term Sheets
that are required to be filed were based on assumptions with
respect to
the Pool that differ from the final Pool Information in any
material
respect or on Certificate structuring terms that were revised
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
Certificates and include such revised Computational Materials
and ABS
Term Sheets (marked, "as revised") in the materials delivered
to the
Company pursuant to subsection (d) above.
(f) The Company shall not be obligated to
file any
Computational Materials that have been determined to contain
any
material error or omission. In the event
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that any Computational Materials or ABS Terms Sheets are
determined,
within the period which the Prospectus relating to the
Certificates is
required to be delivered under the Act, 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 Computational Materials to all recipients of the
prior
versions thereof that indicated orally to the Underwriter they
would
purchase all or any portion of the Certificates 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, 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,
fifty
percent of any additional expenses for such letter resulting
from the
change in Pool Information shall be paid by each of the
Underwriter and
the Company.
(g) If the Underwriter does not provide any
Computational Materials or ABS Term Sheets to the Company
pursuant to
subsection (d) above, 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 Certificates that
is
required to be filed with the Commission in accordance with the
No-Action Letters, and the Underwriter shall provide the
Company with a
certification to that effect on the Closing Date.
(h) In the event of any delay in the delivery
by the
Underwriter to the Company of all Computational Materials and
ABS Term
Sheets required to be delivered in accordance with subsection
(d)
above, or in the delivery of the accountant's comfort letter in
respect
thereof pursuant to Section 5.9, the Company shall have the
right to
delay the release of the Prospectus to investors or to the
Underwriter,
to delay the Closing Date and to take other appropriate actions
in each
case as necessary in order to allow the Company to comply with
its
agreement set forth in Section 5.9 to file the Computational
Materials
and ABS Term Sheets by the time specified therein.
(i) The Underwriter represents that it has in
place,
and covenants that it shall maintain internal controls and
procedures
which it reasonably believes to be sufficient to ensure full
compliance
with all applicable legal requirements of the No-Action Letters
with
respect to the generation and use of Computational Materials
and ABS
Term Sheets in connection with the offering of the
Certificates.
4.3 You further agree that on or prior to the sixth
day after
the Closing Date, you shall provide the Company with a certificate,
substantially in the form of Exhibit G attached hereto, setting forth
(i) in the
case of each class of Certificates, (a) if less than 10% of the
aggregate
principal balance of such class of Certificates has been sold to the
public as
of such date, the value calculated pursuant to clause (b)(iii) of
Exhibit G
hereto, or, (b) if __% or more of such class of Certificates has been
sold to
the public as of such date but no single price is paid for at least __%
of the
aggregate principal balance of such class of Certificates, then the
weighted
average price at which the
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Certificates of such class were sold expressed as a percentage of the
principal
balance of such class of Certificates sold, or (c) the first single
price at
which at least __% of the aggregate principal balance of such class of
Certificates was sold to the public, (ii) the prepayment assumption used
in
pricing each class of Certificates, and (iii) such other information as
to
matters of fact as the Company may reasonably request to enable it to
comply
with its reporting requirements with respect to each class of
Certificates to
the extent such information can in the good faith judgment of the
Underwriter be
determined by it.
5. AGREEMENTS. The Company agrees with you that:
5.1 Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Certificates, the
Company will
furnish you with a copy of each such proposed amendment or supplement.
5.2 The Company will cause the Prospectus Supplement
to be
transmitted to the Commission for filing pursuant to Rule 424(b) under
the Act
by means reasonably calculated to result in filing with the Commission
pursuant
to said rule.
5.3 If, during the period after the first date of the
public
offering of the Certificates in which a prospectus relating to the
Certificates
is required to be delivered under the Act, any event occurs as a result
of which
it is necessary to amend or supplement the Prospectus, as then amended
or
supplemented, in order to make the statements therein, in the light of
the
circumstances when the Prospectus is delivered to a purchaser, not
misleading,
or if it shall be necessary to amend or supplement the Prospectus to
comply with
the Act or the 1933 Act Regulations, the Company promptly will prepare
and
furnish, at its own expense, to you, either amendments or supplements to
the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will
comply
with law.
5.4 The Company will furnish to you, without charge, a
copy of
the Registration Statement (including exhibits thereto) and, so long as
delivery
of a prospectus by an underwriter or dealer may be required by the Act,
as many
copies of the Prospectus, any documents incorporated by reference
therein and
any amendments and supplements thereto as you may reasonably request.
5.5 The Company agrees, so long as the Certificates
shall be
outstanding, or until such time as you shall cease to maintain a
secondary
market in the Certificates, whichever first occurs, to deliver to you
the annual
statement as to compliance delivered to the Trustee pursuant to Section
3.18 of
the Pooling and Servicing Agreement and the annual statement of a firm
of
independent public accountants furnished to the Trustee pursuant to
Section 3.19
of the Pooling and Servicing Agreement, as soon as such statements are
furnished
to the Company.
5.6 The Company will endeavor to arrange for the
qualification
of the Certificates 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 Certificates; provided,
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however, that the Company shall not be required to qualify to do
business in any
jurisdiction where it is not now so qualified or to take any action that
would
subject it to general or unlimited service of process in any
jurisdiction where
it is not now so subject.
5.7 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 you for any reasonable expenses (including reasonable fees and
disbursements of counsel) reasonably incurred by you in connection with
qualification of the Certificates for sale and determination of their
eligibility for investment under the laws of such jurisdictions as you
have
reasonably requested pursuant to Section 5.6 above and the printing of
memoranda
relating thereto, for any fees charged by investment rating agencies for
the
rating of the Certificates, and for expenses incurred in distributing
the
Prospectus (including any amendments and supplements thereto) to the
Underwriter. Except as herein provided, you shall be responsible for
paying all
costs and expenses incurred by you, including the fees and disbursements
of your
counsel, in connection with the purchase and sale of the Certificates.
5.8 If, during the period after the Closing Date in
which a
prospectus relating to the Certificates is required to be delivered
under the
Act, the Company receives notice that a stop order suspending the
effectiveness
of the Registration Statement or preventing the offer and sale of the
Certificates is in effect, the Company will advise you of the issuance
of such
stop order.
5.9 The Company shall file the Computational Materials
and ABS
Term Sheets (if any) provided to it by the Underwriter under Section
4.2(d) with
the Commission pursuant to a Current Report on Form 8-K by ___________
on the
morning the Prospectus is delivered to the Underwriter or, the case of
any
Collateral Term Sheet required to be filed prior to such date, by
____________
on the second business day following the first day on which such
Collateral Term
Sheet has been sent to a prospective investor; 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 _______________,
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
(if any) provided by the Underwriter to the Company for filing on Form
8-K, as
provided in Section 4.2 and this Section 5.9, is accurate without
exception. The
foregoing letter shall be at the sole expense of the Underwriter. The
Company
shall file any corrected Computational Materials described in Section
4.2(f) as
soon as practicable following receipt thereof. The Company also will
file with
the Commission within fifteen days of the issuance of the Certificates a
Current
Report on Form 8-K (for purposes of filing the Pooling and Servicing
Agreement).
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. The
Underwriter's
obligation to purchase the Certificates shall be subject to the
following
conditions:
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6.1 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 by the
Commission; 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(b) under the Act.
6.2 Since _________ 1, ____ there shall have been no
material
adverse change (not in the ordinary course of business) in the condition
of the
Company.
6.3 The Company shall have delivered to you a
certificate,
dated the Closing Date, of the President, a Senior Vice President or a
Vice
President of the Company to the effect that the signer of such
certificate has
examined this Agreement, the Prospectus, the Pooling and Servicing
Agreement and
various other closing documents, and that, to the best of his or her
knowledge
after reasonable investigation:
(a) the representations and warranties of the
Company
in this Agreement and in the Pooling and Servicing Agreement
are true
and correct in all material respects; and
(b) the Company has, in all material
respects,
complied with all the agreements and satisfied all the
conditions on
its part to be performed or satisfied hereunder at or prior to
the
Closing Date.
6.4 You shall have received the opinions of Thacher
Proffitt &
Wood, counsel for the Company and the Master Servicer, dated the Closing
Date
and substantially to the effect set forth in Exhibit A-1 and Exhibit A-
2, and
the opinion of [counsel to Master Servicer], dated the Closing Date and
substantially to the effect set forth in Exhibit B.
6.5 You shall have received from
________________________,
counsel for the Underwriter, an opinion dated the Closing Date in form
and
substance satisfactory to the Underwriter.
6.6 The Underwriter shall have received from
________________________, certified public accountants, a letter dated
the date
hereof and satisfactory in form and substance to the Underwriter and the
Underwriter's counsel, to the effect that they have performed certain
specified
procedures, all of which have been agreed to by the Underwriter, 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 Pool", "Pooling and Servicing Agreement",
"Description of the Certificates" and "Certain Yield and Prepayment
Considerations" agrees with the records of the Company excluding any
questions
of legal interpreta tion.
6.7 The Certificates shall have been rated "AAA" by
[Standard
& Poor's Ratings Services] and [Fitch Investor's Service, L.P.]
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6.8 You shall have received the opinion of [Trustee's
Counsel], dated the Closing Date, substantially to the effect set forth
in
Exhibit C.
6.9 You shall have received from Thacher Proffitt &
Wood,
counsel to the Company, reliance letters with respect to any opinions
delivered
to Standard & Poor's Ratings Services and Fitch Investor Services, L.P.
The Company will furnish you with conformed copies of the above
opinions,
certificates, letters and documents as you reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION.
7.1 The Company agrees to indemnify and hold harmless
you and
each person, if any, who controls you within the meaning of either
Section 15 of
the Act or Section 20 of the Securities Exchange Act of 1934, from and
against
any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in
the
Registration Statement for the registration of the Certificates as
originally
filed or in any amendment thereof or other filing incorporated by
reference
therein, or in the Prospectus or incorporated by reference therein (if
used
within the period set forth in Section 5.3 hereof 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 or necessary to make the statements
therein, in
light of the circumstances under which they were made, not misleading,
except
insofar as such losses, claims, damages, or liabilities are caused by
any such
untrue statement or omission or alleged untrue statement or omission
based upon
any information with respect to which the Underwriter has agreed to
indemnify
the Company pursuant to Section 7.2; provided, that neither the Company,
or you
will be liable in any case to the extent that any such loss, claim,
damage or
liability arises out of or is based upon any such untrue statement or
alleged
untrue statement or omission or alleged omission made therein relating
to the
Excluded Information.
7.2 You agree to indemnify and hold harmless the
Company, its
directors or officers and any person controlling the Company to the same
extent
as the indemnity set forth in clause 7.1 above from the Company to you,
but only
with respect to (i) the Underwriter Information and (ii) the
Computational
Materials and ABS Term Sheets, 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 addition, you agree to indemnify and hold harmless the
Company
its directors or officers and any person controlling the Company against
any and
all losses, claims, damages, liabilities and expenses (including,
without
limitation, reasonable attorneys' fees) caused by, resulting from,
relating to,
or based upon any legend regarding original issue discount on any
Certificate
resulting from incorrect information provided by the Underwriter in the
certificates described in Section 4.3 hereof.
7.3 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 clause 7.1 or 7.2, such
person (the
"indemnified party") shall promptly notify the person against
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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 reasonable 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 reasonable 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 connection with any proceeding
or
related proceedings in the same jurisdiction, be liable for the
reasonable fees
and expenses of more than one separate firm for all such indemnified
parties.
Such firm shall be designated in writing by you, in the case of parties
indemnified pursuant to clause 7.1 and by the Company, in the case of
parties
indemnified pursuant to clause 7.2. The indemnifying party may, at its
option,
at any time upon written notice to the indemnified party, assume the
defense of
any proceeding and may designate counsel reasonably satisfactory to the
indemnified party in connection therewith provided that the counsel so
designated would have no actual or potential conflict of interest in
connection
with such representation. 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
agrees to
indemnify the indemnified party from and against any loss or liability
by reason
of such settlement or judgment. If the indemnifying party assumes the
defense of
any proceeding, it shall be entitled to settle such proceeding with the
consent
of the indemnified party or, if such settlement provides for release of
the
indemnified party in connection with all matters relating to the
proceeding
which have been asserted against the indemnified party in such
proceeding by the
other parties to such settlement, without the consent of the indemnified
party.
7.4 If the indemnification provided for in this
Section 7 is
unavailable to an indemnified party under clause 7.1 or 7.2 hereof or
insufficient in respect of any losses, claims, damages or liabilities
referred
to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by
such
indemnified party as a result of such losses, claims, damages or
liabilities, in
such proportion as is appropriate to reflect not only the relative
benefits
received by the Company on the one hand and the Underwriter on the other
from
the offering of the Certificates but also the relative fault of the
Company on
the one hand and of the Underwriter, on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or
liabilities, as well as any other relevant equitable considerations. The
relative 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.
-14-
7.5 The Company 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 considerations referred to in clause 7.4, above. The
amount paid
or payable by an indemnified party as a result of the losses, claims,
damages
and liabilities referred to in this Section 7 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 except where the indemnified party
is
required to bear such expenses pursuant to clause 7.4; which expenses
the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party believes
that it
will be ultimately obligated to pay such expenses. In the event that any
expenses so paid by the indemnifying party are subsequently determined
to not be
required to be borne by the indemnifying party hereunder, the party
which
received such payment shall promptly refund the amount so paid to the
party
which made such payment. 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.
7.6 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 the
Underwriter or on behalf of the Underwriter or any person controlling
the
Underwriter or by or on behalf of the Company and its respective
directors or
officers or any person controlling the Company and (iii) acceptance of
and
payment for any of the Certificates.
8. TERMINATION. This Agreement shall be subject to termination
by
notice given to the Company, if the sale of the Certificates provided
for herein
is not consummated 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,
or if for any reason the Company shall be unable to perform their
respective
obligations under this Agreement. If you terminate this Agreement in
accordance
with this Section 8, 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 Certificates.
9. CERTAIN REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The
respective
agreements, representations, warranties, indemnities and other
statements of the
Company or the officers of the Company, and you set forth in or made
pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by you or on
your
behalf or made by or on behalf of the Company or any of its officers,
directors
or controlling persons, and will survive delivery of and payment for the
Certificates.
10. NOTICES. All communications hereunder will be in writing
and
effective only on receipt, and, if sent to the Underwriter will be
mailed,
delivered or telegraphed and confirmed to you at
________________________________________________________________________
,
Attention: ____________________________ or if sent to the Company, will
be
mailed, delivered or telegraphed and confirmed to it at Ameriquest
Mortgage
Securities Inc., ____________________.
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11. SUCCESSORS. This Agreement will inure to the benefit of and
be
binding upon the parties hereto and their respective successors and the
officers
and directors and controlling persons referred to in Section 7 hereof,
and their
successors and assigns, and no other person will have any right or
obligation
hereunder.
12. APPLICABLE LAW. This Agreement will be governed by and
construed in
accordance with the laws of the State of New York.
13. COUNTERPARTS. This Agreement may be executed in any number
of
counterparts, each of which shall be deemed an original, which taken
together
shall constitute one and the same instrument.
-16-
If the foregoing is in accordance with your understanding of
our
agreement, please sign and return to us a counterpart hereof, whereupon
this
letter and your acceptance shall represent a binding agreement between
the
Company and you.
Very truly yours,
AMERIQUEST MORTGAGE
SECURITIES INC.
By:
-----------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as
of the
date first above written.
________________________________
By:
-----------------------------
Name:
Title:
