EXHIBIT 1.1
[MILA MORTGAGE ACCEPTANCE, INC.]
$_____________ (Approximately)
Mortgage Pass-Through Certificates, Series 200__-__
Class A
$________________
_____%
Class R
$________________
_____%
UNDERWRITING AGREEMENT
______________, 200_
[Underwriter]
Ladies and Gentlemen:
[MILA Mortgage Acceptance, Inc.], 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.
<PAGE>
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 LLP 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:
(d) 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 that the statements in the Prospectus as so amended
or
supplemente
