EXHIBIT 1.1
OPTEUM MORTGAGE ACCEPTANCE CORP.
$_____________ (Approximately)
Mortgage Pass-Through Certificates, Series 200__-__
Class R
$________________
_____%
Class A
$________________
_____%
UNDERWRITING AGREEMENT
______________, 200_
[Underwriter]
___________________
___________________
___________________
Ladies and Gentlemen:
Opteum Mortgage Acceptance Corp., a Delaware corporation (the
"Company"), proposes to sell to you (also referred to herein as
the
"Underwriter") Mortgage Pass-Through Certificates, Series 200_-_,
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
________________________, 200_ (the "Cut-off Date") among the
Company, as
seller, ______________________________, as master servicer ("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.
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. 333-________) on Form
S-3
for
the registration under the Securities Act of 1933, as amended
(the
"Act"), of Mortgage Pass-Through Certificates (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
________________. 200_ (the "Prospectus Supplement"), to the
prospectus
dated ______________, 200_ (the "Basic Prospectus"), relating to
the
Certificates and the method of distribution thereof. Such
registration
statement (No. 333-________) 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". The Company prepared a Free Writing Prospectus
containing
substantially all information that will appear in the Prospectus
Supplement
and
minus specific sections including the "Method of Distribution"
section
(such Free Writing Prospectus, together with the Basic Prospectus,
the
"Definitive Free Writing Prospectus").
(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 in
Exhibit D (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
Prospectus
identified in Exhibit E (the "Underwriter Information"). In
addition, any
Issuer Information (as defined below) contained in the Definitive
Free
Writing Prospectus, as of the date thereof and as of the time of
each
Contract of Sale occurring prior to the time that Prospectus
Supplement
first becomes available for use by the Underwriter, did not contain
an
untrue statement of a material fact and did not omit to state a
material
fact
necessary in order to make the statements therein, in the light of
the
circumstances under which they were made, not misleading. The
Effective
Date
shall mean the earlier of the date by which the Prospectus
Supplement
is
first used and the time of the first Contract of Sale to which
such
Prospectus Supplement relates. 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) The Company is not, as of the date upon which it delivers
the
Definitive Free Writing Prospectus, an Ineligible Issuer, as such
term is
defined in Rule 405 of the 1933 Act Regulations.
(e) This Agreement has been duly authorized, executed and delivered
by
the
Company.
(f) As of the Closing Date (as defined herein), the Certificates
and
the
Pooling and Servicing Agreement 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.
(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(i)(B)(1) 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(i)(B)(2) 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 $25,000 or 20%, 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 $100,000, 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 shall not be less than an initial
Certificate Principal Balance of $25,000.
(g) 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 with respect to the generation and
use of
Free
Writing Prospectuses in connection with the offering of the
Certificates.
(h) The Underwriter will use its best reasonable efforts to cause
Cede
& Co. to issue a commitment letter, prior to the Closing Date,
to DTC
stating that Cede & Co. will value the DTC Registered
Certificates
(hereinafter defined) on an ongoing basis subsequent to the Closing
Date.
(i) 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.
(j) As of the date hereof and as of the Closing Date, the
Underwriter
has
complied with all of its obligations hereunder. With respect to
all
Free
Writing Prospectuses, other than the Definitive Free Writing
Prospectus, provided by the Underwriter to any investor, if any,
such Free
Writing Prospectuses are accurate in all material respects (taking
into
account the assumptions explicitly set forth in the Free
Writing
Prospectuses, except to the extent of any errors therein that are
caused by
errors in the Pool Information, and except for any Issuer
Information
therein). The Free Writing Prospectuses, other than the Definitive
Free
Writing Prospectus, provided by the Underwriter to the Company
pursuant to
Section 4.4 constitute a complete set of all such Free Writing
Prospectuses
furnished to any investor by such Underwriter in connection with
the
offering of any Certificates, other than any Underwriter
Derived
Information.
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 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 Thacher Proffitt & Wood at 10:00 a.m.,
New York time,
on ____________, 200__ 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 1:00 p.m. on the business day
prior to the
Closing Date.
4.
OFFERING BY UNDERWRITER.
4.1
It is understood that the Underwriter propose to offer the
Certificates
for sale to the public as set forth in the Prospectus and that the
Underwriter
will not offer, sell or otherwise distribute the Certificates
(except for the
sale thereof in exempt transactions) in any state in which the
Certificates are
not exempt from registration under Blue Sky laws or state
securities laws
(except where the Certificates will have been qualified for
offering and sale at
your direction under such Blue Sky laws or state securities laws).
Prior to the
date of the first contract of sale made based on the Definitive
Free Writing
Prospectus, you have not offered, pledged, sold, disposed of or
otherwise
transferred any Certificate or any security backed by the Mortgage
Loans, any
interest in any Certificate or such security or any Mortgage Loan
except as set
forth in Section 4.2.
4.2
It is understood that the Underwriter will solicit offers to
purchase
the Certificates as follows:
(a) Prior to the time you have received the Definitive Free
Writing
Prospectus you may, in compliance with the provisions of this
Agreement,
solicit offers to purchase Certificates; provided, that you shall
not
accept any such offer
to purchase a Certificate or any interest in any
Certificate or Mortgage Loan or otherwise enter into any Contract
of Sale
for
any Certificate, any interest in any Certificate or any Mortgage
Loan
prior to the investor's receipt of Definitive Free Writing
Prospectus.
(b) Any Free Writing Prospectus (other than the Definitive Free
Writing Prospectus) relating to the Certificates used by the
Underwriter in
compliance with the terms of this Agreement prior to the time
such
Underwriter has entered into a Contract of Sale for Certificates
shall
prominently set forth substantially the following statement:
The information in this free writing prospectus is
preliminary, and will be superseded by the Definitive Free
Writing Prospectus. This free writing prospectus is being
delivered to you solely to provide you with information about
the offering of the Certificates referred to in this free
writing prospectus and to solicit an offer to purchase the
Certificates, when, as and if issued. Any such offer to
purchase made by you will not be accepted and will not
constitute a contractual commitment by you to purchase any of
the Certificates until we have accepted your offer to purchase
Certificates. We will not accept any offer by you to purchase
Certificates, and you will not have any contractual commitment
to purchase any of the Certificates until after you have
received the Definitive Free Writing Prospectus. You may
withdraw your offer to purchase Certificates at any time prior
to our acceptance of your offer.
"Written Communication" has the same meaning as that term is
defined in Rule 405
of the 1933 Act Regulations.
(c) Any Free Writing Prospectus relating to Certificates and used
by
the
Underwriter in connection with marketing the Certificates,
including
the
Definitive Free Writing Prospectus, shall prominently set forth
substantially the following statement:
The Certificates referred to in these materials are being sold
when, as and if issued. You are advised that Certificates may
not be issued that have the characteristics described in these
materials. Our obligation to sell such Certificates to you is
conditioned on the mortgage loans and certificates having the
characteristics described in these materials. If for any
reason we do not deliver such Certificates, we will notify
you, and neither the issuer nor any underwriter will have any
obligation to you to deliver all or any portion of the
Certificates which you have committed to purchase, and none of
the
issuer nor any underwriter will be liable for any costs or
damages whatsoever arising from or related to such
non-delivery.
4.3
It is understood that you will not enter into a Contract of Sale
with
any investor until the investor has received the Definitive Free
Writing
Prospectus. For purposes of this Agreement, Contract of Sale has
the same
meaning as in Rule 159 of the 1933 Act Regulations and all
Commission guidance
relating to Rule 159, including without limitation the Commission's
statement in
Securities Act Release No. 33-8501 that "a contract of sale can
occur under the
federal securities laws before there is a bilateral contract under
state law,
for example when a purchaser has taken all actions necessary to be
bound but a
seller's obligations remain conditional under state law." The
Definitive Free
Writing Prospectus shall prominently set forth the following
statement:
This Definitive Free Writing Prospectus supersedes
the information in any free writing prospectus
previously delivered in connection with this
offering, to the extent that this Definitive Free
Writing Prospectus is inconsistent with any
information in any free writing prospectus delivered
in connection with this offering.
4.4
It is understood that you may prepare and provide to
prospective
investors certain Free Writing Prospectuses (as defined below),
subject to the
following conditions:
(a) Unless preceded or accompanied by a prospectus satisfying
the
requirements of Section 10(a) of the Act, the Underwriter shall not
convey
or deliver any Written
Communication to any person in connection with the
initial offering of the Certificates, unless such Written
Communication
either (i) is made in reliance on Rule 134 under the Act, (ii)
constitutes
a
prospectus satisfying the requirements of Rule 430B under the Act,
(iii)
is
the Definitive Free Writing Prospectus, or (iv) both (1)
constitutes a
Free
Writing Prospectus (as defined below) used in reliance on Rule 164
and
(2)
includes only information that is within the definition of ABS
Informational and Computational Materials as defined in Item 1100
of
Regulation AB.
(b) The Underwriter shall comply in all material respects with
all
applicable laws and regulations in connection with the use of Free
Writing
Prospectuses, including but not limited to Rules 164 and 433 of the
1933
Act
Regulations and all Commission guidance relating to Free
Writing
Prospectuses, including but not limited to Commission Release No.
33-8591.
(c) For purposes hereof, "Free Writing Prospectus" shall have
the
meaning given such term in Rules 405 and 433 of the 1933 Act
Regulations.
"Issuer Information" shall mean information included in a Free
Writing
Prospectus that both (i) is within the types of information
specified in
clauses (1) to (5) of footnote 271 of Commission Release No.
33-8591
(Securities Offering Reform) as shown in Exhibit G hereto and (ii)
has been
either prepared by, or has been reviewed and approved by, the
Company as
evidenced by oral, electronic or written communication by it or
through its
attorneys. "Underwriter Derived Information" shall refer to
information of
the
type described in clause (5) of such footnote 271 when prepared by
the
Underwriter.
(d) All Free Writing Prospectuses provided to prospective
investors,
whether or not filed with the Commission, shall bear a legend on
each page
including the following statement:
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT
(INCLUDING A PROSPECTUS) WITH THE SEC FOR THE
OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE
YOU INVEST, YOU SHOULD READ THE PROSPECTUS IN THAT
REGISTRATION STATEMENT AND OTHER DOCUMENTS THE ISSUER
HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION
ABOUT THE ISSUER AND THE OFFERING. YOU MAY GET THESE
DOCUMENTS AT NO CHARGE BY VISITING EDGAR ON THE SEC
WEB SITE AT WWW.SEC.GOV. ALTERNATIVELY, THE ISSUER,
ANY UNDERWRITER OR ANY DEALER PARTICIPATING IN THE
OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS AT
NO CHARGE IF YOU REQUEST IT BY CALLING TOLL-FREE
1-8[XX-XXX-XXXX].
The Company shall have the right to require additional specific
legends
or notations to appear on any Free Writing Prospectus, the right
to
require changes regarding the use of terminology and the right
to
determine the types of information appearing therein.
(e) The Underwriter shall have delivered to the Company, no later
than
two
business days prior to the proposed date of first use thereof, (i)
any
Free
Writing Prospectus prepared by or on behalf of that Underwriter
that
contains any information that, if reviewed and approved by the
Company,
would be Issuer Information, and (ii) any Free Writing Prospectus
or
portion thereof that contains only a description of the final terms
of the
Certificates after such terms have been established for all classes
of
Certificates being publicly offered. No Information in any Free
Writing
Prospectus shall consist of information of a type that is not
included
within the definition of ABS Informational and Computational
Materials. To
facilitate filing to the extent required by Section 5.10 or 5.11,
as
applicable, all Underwriter Derived Information shall be set forth
in a
document separate from the document including Issuer Information.
All Free
Writing Prospectuses prepared by the Underwriter that are required
to be
delivered to the Company under this subsection (e), (i) must be
approved by
the
Company before such Underwriter provides the Free Writing
Prospectus to
investors pursuant to the terms of this Agreement (such approval to
be
evidenced as set forth in Section 4.4(c)(ii)), and (ii) shall be
provided
by
such Underwriter to the Company, for filing as provided in Section
5.10
in
the format as required by the Company.
(f) None of the information in the Free Writing Prospectuses
may
conflict with the information contained in the Prospectus or
the
Registration Statement.
(g) The Company shall not be obligated to file any Free Writing
Prospectuses that have been determined to contain any material
error or
omission, unless the Company is required to file the Free
Writing
Prospectus pursuant to Section 5.10 below. In the event that
the
Underwriter possesses actual knowledge that, as of the date on
which an
investor entered into an agreement to purchase any Certificates,
any Free
Writing Prospectus prepared by or on behalf of such Underwriter
and
delivered to such investor contained any untrue statement of a
material
fact
or omitted to state a material fact necessary in order to make
the
statements contained therein, in light of the circumstances under
which
they
were made, not misleading (such Free Writing Prospectus, a
"Defective
Free
Writing Prospectus"), that Underwriter shall notify the Company
thereof as soon as practical but in any event within one business
day after
discovery.
(h) If the Underwriter do not provide any Free Writing Prospectuses
to
the
Company pursuant to subsection (e) above, the Underwriter shall
be
deemed to have represented, as of the Closing Date, that they did
not
provide any prospective investors with any information in written
or
electronic form in connection with the offering of the Certificates
that is
required to be filed with the Commission by the Company as a Free
Writing
Prospectus (other than the Definitive Free Writing Prospectus)
in
accordance with the 1933 Act Regulations. Information not required
to be
filed shall include a Free Writing Prospectus containing solely
Underwriter
Derived Information.
(i) In the event of any delay in the delivery by the Underwriter
to
the
Company of any Free Writing Prospectuses required to be delivered
in
accordance with subsection
(e) above, or in the delivery of the
accountant's comfort letter in respect thereof, 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 5.10 to file the Free
Writing
Prospectuses by the time specified therein.
(j) 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 1933 Act Regulations with respect to
the
generation and use of Free Writing Prospectuses in connection with
the
offering of the Certificates. In addition, the Underwriter shall,
for a
period of at least three years after the date hereof, maintain
written
and/or electronic records of the following:
(i) Any written communications in respect of the Certificates
not
deemed a Prospectus or a Free Writing Prospectus because its
content
is limited to the statements permitted by Rule 134 of the
Securities
Act;
(ii) any Free Writing Prospectus used to solicit offers to
purchase Certificates;
(iii) regarding each Free Writing Prospectus delivered to a
prospective investor, the date of such delivery and identity of
such
prospective investor;
(iv) regarding each offer to purchase Certificates received by
such Underwriter, the identity of the offeror, the date the offer
was
made and the proposed terms and allocation of the Certificates
offered
to be purchased; and
(v) regarding each Contract of Sale entered into by such
Underwriter, the date, identity of the investor and the terms of
such
Contract of Sale, including the amount and price of
Certificates
subject to such Contract of Sale.
(k) The Underwriter covenants with the Company that after the
final
Prospectus is available that Underwriter shall not distribute any
written
information concerning the Certificates to a prospective investor
unless
such
information is preceded or accompanied by the final Prospectus.
(l) The Underwriter agrees to provide written notice to the Company
of
the
date it first enters into any Contract of Sale for a
Certificate.
4.5
The Underwriter further agrees that on or prior to the sixth day
after
the Closing Date, such Underwriter shall provide the Company with a
certificate,
substantially in the form of Exhibit F attached hereto, setting
forth (i) in the
case of each class of Certificates purchased by such Underwriter,
(a) if less
than 10% of the aggregate principal balance or notional amount, as
applicable,
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 F hereto,
or, (b) if 10%
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 10% of the aggregate
principal
balance or notional amount, as applicable of such class of
Certificates, then
the weighted average price at which the Certificates of such class
were sold
expressed as a percentage of the principal balance or notional
amount, as
applicable, of such class of Certificates sold, or (c) the first
single price at
which at least 10% of the aggregate principal balance or notional
amount, as
applicable, of such class of Certificates was sold to the public,
(ii) the
prepayment assumption used in pricing such 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
such
Certificates to the extent such information can in the good faith
judgment of
such Underwriter be determined by it.
4.6
The Underwriter further agrees that (i) it will include in
every
confirmation sent out the notice required by Rule 173 informing the
investor
that the sale was made pursuant to the Registration Statement and
that the
investor may request a copy of the Prospectus from such
Underwriter; (ii) if a
paper copy of the Prospectus is requested by a person who receives
a
confirmation, such Underwriter shall deliver a paper copy of such
Prospectus;
(iii) if an electronic copy of the Prospectus is delivered by the
Underwriter
for any purpose, such copy shall be the same electronic file
containing the
Prospectus in the identical form transmitted electronically to such
Underwriter
by or on behalf of the Company specifically for use by such
Underwriter pursuant
to this Section 4.6; for example, if the Prospectus is delivered to
the
Underwriter by or on behalf of the Company in a single electronic
file in .pdf
format, then such Underwriter will deliver the electronic copy of
the Prospectus
in the same single electronic file in .pdf format; and (iv) it has
not used, and
during the period for which it has an obligation to deliver a
"prospectus" (as
defined in Section 2(a)(10) of the Act) relating to the
Certificates (including
any period during which you have such delivery obligation in its
capacity as a
"dealer" (as defined in Section 2(a)(12) of the Act)) it will not
use any
internet website or electronic media containing information for
prospective
investors, including any internet website or electronic media
maintained by
third parties, in connection with the offering of the Certificates,
except in
compliance with applicable laws and regulations. The Underwriter
further agrees
that (i) if it delivers to an investor the Prospectus in .pdf
format, upon such
Underwriter's receipt of a request from the investor within the
period for which
delivery of the Prospectus is required, such Underwriter will
promptly deliver
or cause to be delivered to the investor, without charge, a paper
copy of the
Prospectus and (ii) it will provide to the Company any Free
Writing
Prospectuses, or portions thereof, which the Company is required to
file with
the Commission in electronic format and will use reasonable efforts
to provide
to the Company such Free Writing Prospectuses, or portions thereof,
in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF,
except to the
extent that the Company, in its sole discretion, waives such
requirements.
4.7
In the event that the Underwriter uses a road show (as defined in
Rule
433) in connection with the offering of the Certificates, all
information in the
road show will be provided orally only, and not as a Written
Communication. The
Underwriter agrees that any slideshow used in connection with a
road show (i)
will only be provided as part of the road show and not separately,
(ii) if
handed out at any meeting as a hard copy, will be retrieved prior
to the end of
the meeting, and (iii) will otherwise be used only in a manner that
does not
cause the slideshow to be treated as a Free Writing Prospectus.
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 t
