EXHIBIT 1.1
MORTGAGEIT SECURITIES CORP.
$_____________ (Approximately)
Mortgage Pass-Through Certificates, Series 200__-__
Class A
$________________
_____%
Class R
$________________
_____%
UNDERWRITING AGREEMENT
______________, 200_
[Underwriter]
___________________________
___________________________
___________________________
Ladies and Gentlemen:
MortgageIT Securities 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 Certificates 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
Certificates 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 Base 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 the
Underwriter 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 the Underwriter. 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
prospectus
supplement dated __________, 200_ (the "Prospectus Supplement"), to
the
prospectus dated [__________, 200_] (the "Base 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 Base
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 __________, 200_ (the
"Closing
Date") for use in connection with the offering of the Certificates,
are
hereinafter called the "Prospectus". The Company further proposes
to
prepare, after the final terms of all classes of the Certificates
have been
established, a Free Writing Prospectus that will contain
substantially all
information that will appear in the Prospectus Supplement, to the
extent
that
such information is known at that time and minus specific
sections
including the Method of Distribution section (such Free Writing
Prospectus,
together with the Base Prospectus, the "Definitive Free Writing
Prospectus").
(b) The Registration Statement has become effective and no stop
order suspending the effectiveness of the Registration Statement is
in
effect, no proceedings for such purpose are pending before or
threatened by
the
Commission, and the Registration Statement as of the Effective Date
(as
defined in this paragraph), 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.
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 any information contained in or omitted from the portions of
the
Prospectus. In addition, any Issuer Information (as defined
below)
contained in the Definitive Free Writing Prospectus, as of the
date
thereof, 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
on which
the
Definitive Free Writing Prospectus is first used and the time of
the
first Contract of Sale to which such Prospectus Supplement relates.
As used
herein, "Pool Information" means all loan level data with respect
to the
characteristics of the Mortgage Loans and administrative and
servicing
fees, as provided by or on behalf of the Company. The Company
acknowledges
that
except for any Computational Materials, the Underwriter's
Information
and
the Decrement/Yield Tables constitute the only information
furnished in
writing by you or on your behalf for use in connection with the
preparation
of
the Registration Statement or the Prospectus, and you confirm that
the
Underwriter's Information is correct with respect to you and
the
Certificates you underwrite.
(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 commencement of the offering,
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
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.
(g) Since the respective dates as of which information is given
in
the Registration Statement and the Prospectus except as otherwise
stated
therein, (A) there has been no material adverse change in the
condition,
financial or otherwise, earnings, affairs, regulatory situation or
business
of
the Company or the Seller, take as a whole and (B) there have been
no
transactions entered into by the Company which are material, other
than
those in the ordinary course of business.
(h) The Pooling and Servicing Agreement, when executed and
delivered by the Depositor, will constitute a legal, valid and
binding
instrument enforceable against the Depositor in accordance with its
terms,
subject, as to the enforceability of remedies, to applicable
bankruptcy,
reorganization, insolvency, moratorium and other laws affecting the
rights
of
creditors generally, and to general principles of equity and
the
discretion of the court (regardless of whether enforceability of
such
remedies is considered in a proceeding in equity or at law).
(i) The issuance of the Certificates will have been duly
authorized by the Issuer and, when such Certificates are executed
and
authenticated in accordance with the Pooling and Servicing
Agreement and
delivered against payment pursuant to this Agreement, such
Certificates
will
be validly issued and outstanding; and the Certificates will be
entitled to the benefits provided by the related Pooling and
Servicing
Agreement. The Certificates are in all material respects in the
form
contemplated by the related Pooling and Servicing Agreement.
Immediately
prior to the delivery of the Certificates to the Underwriter, the
Company
will
own the Certificates, and upon such delivery the Underwriter
will
acquire title thereto, free and clear of any lien, pledge,
encumbrance or
other security interest other than one created or granted by
the
Underwriter.
(j) Neither the Issuer nor the Trust Funds are or, as a result
of
the
offer and sale of the Certificates as contemplated in this
Agreement
will
become, an "investment company" or "controlled" by an
"investment
company" within the meaning of the Investment Company Act of 1940,
as
amended.
(k) As of the Closing Date, the Mortgage Loan Purchase
Agreement
(together with this
Agreement, the "Transaction Documents") will have been
duly
authorized, executed and delivered by the Company and the Seller
and
will
conform in all material respects to the description thereof
contained
in
the Prospectus and will constitute a valid and binding agreement of
the
Company and the Seller enforceable in accordance with its terms,
except as
the
same may be limited by bankruptcy, insolvency, reorganization or
other
laws
relating to or affecting the enforcement of creditors' rights
generally, and to general principles of equity and the discretion
of the
court (regardless of whether enforceability of such remedies is
considered
in a
proceeding in equity or at law).
(l) Neither the issuance or delivery of the Certificates, nor
the
consummation of any other of the transactions contemplated herein
or in the
Transaction Documents, nor compliance with the provisions of
the
Transaction Documents will conflict with or result in the breach of
any
material term or provision of the certificate of incorporation of
the
Company, and the Company is not in breach or violation of or in
default
(nor
has an event occurred which with notice or lapse of time or both
would
constitute a default) under the terms of (i) any indenture,
contract,
lease, mortgage, deed of trust, note agreement or other evidence
of
indebtedness or other agreement, obligation or instrument to which
the
Company is a party or by which it or its properties are bound, or
(ii) any
law,
decree, order, rule or regulation applicable to the Company of
any
court or supervisory, regulatory, administrative or governmental
agency,
body
or authority, or arbitrator having jurisdiction over the Company,
or
its
properties, the default in or the breach or violation of which
would
have
a material adverse effect on the Company, the trust, the
Certificates
or
on the ability of the Company to perform its obligations under
the
Transaction Documents; and neither the delivery of the
Certificates, nor
the
execution and delivery of the Transaction Documents or the
consummation
of
any other of the transactions contemplated herein or in the
Transaction
Documents, nor the
compliance with the provisions of the Transaction
Documents will result in such a breach, violation or default which
would
have
such a material adverse effect.
(m) No filing or registration with, notice to, or consent,
approval, authorization or order or other action of, any court
or
governmental authority or agency is required for the consummation
by the
Company of the transactions contemplated by the Transaction
Documents
(other than as required under state securities laws or Blue Sky
laws, as to
which no representations and warranties are made by the Company),
except
such
as have been, or will have been prior to the Closing Date,
obtained
under the Act, and such recordations of the assignment of the
Mortgage
Loans.
(n) There is no action, suit or proceeding before or by any
court, administrative or governmental agency, or other tribunal,
domestic
or
foreign, now pending to which the Company is a party, or, to the
best of
the
Company's knowledge, threatened against the Company, which
could
reasonably result individually or in the aggregate in any material
adverse
change in the condition (financial or otherwise), earnings,
affairs,
regulatory situation or business prospects of the Company or
could
reasonably interfere with or materially and adversely affect
the
consummation of the transactions contemplated in the Transaction
Documents.
(o) Any taxes, fees and other governmental charges in
connection
with
the execution, delivery and issuance of the Transaction Documents
and
the
Certificates have been or will be paid by the Company on or prior
to
the
Closing Date, except for fees for recording assignments of
Mortgage
Loans to the Trustee or, if applicable, to MERS on behalf of the
Trustee,
pursuant to the Pooling and Servicing Agreement that have not yet
been
completed, which fees will be paid by the Company in accordance
with the
Pooling and Servicing Agreement.
(p) The Company acknowledges and agrees that the relationship
between itself and the Underwriter is an arms-length commercial
relationship that creates no fiduciary duty on the part of the
Underwriter,
and
each party expressly disclaims any fiduciary relationship.
1.2 The Company represents and warrants to, and agrees with,
the
Underwriter that as of the Closing Date the representations and
warranties of
the Seller in Section 3.1(a) of the Mortgage Loan Purchase
Agreement will be
true and correct in all material respects.
1.3 Each 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 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.
(h) The Underwriter responsible for having 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 will have such funds available. Such funds will be
available
for
immediate transfer into the account of the Company maintained at
such
bank.
(i) Such 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.
(j) As of the date hereof and as of the Closing Date, such
Underwriter has complied with all of its obligations hereunder.
With
respect to all Free Writing Prospectuses 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 provided
by
the
Underwriter to the Company pursuant to Section 4.4 constitute a
complete set of all Free Writing Prospectuses furnished to any
investor by
the
Underwriter in connection with the offering of any Certificates,
other
than
any Underwriter Derived Information.
1.4 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 the Underwriter, and the Underwriter agrees to purchase
from the
Company, the Certificates indicated on Schedule I hereto, 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 the Underwriter shall
designate,
which date and time may be postponed by agreement between the
Underwriter 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
the Underwriter 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
and/or
solicit offers for the Certificates to be purchased by them for
sale to the
public as set forth in the Prospectus and the Underwriter agrees
that all such
offers, solicitations and sales by them shall be made in compliance
with all
applicable laws and regulations. Prior to the date of the first
contract of sale
made based on the Definitive Free Writing Prospectus, you have not
sold any
Certificate or any security backed by the Mortgage Loans, any
interest in any
Certificate or such security or any Mortgage Loan.
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 the Definitive Free Writing
Prospectus.
(b) Any Free Writing Prospectus (other than the Definitive Free
Writing Prospectus) relating to the Certificates used by an
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 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 (other than the Definitive Free
Writing Prospectus) relating to the Certificates used by an
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 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
previously 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, an 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) Each Underwriter shall comply 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 I hereto and (ii)
has been
either prepared by, or has been reviewed and approved by, the
Company.
"Underwriter Derived Information" shall refer to information of the
type
described in clause (5) of such footnote 271 when prepared by
an
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 [AT AMERICAN HOME.COM, OR AT
UNDERWRITER'S WEBSITE]. 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 deliver to the Company and its
counsel,
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 the
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.
The
Underwriter shall provide to the Company, for filing as provided in
Section
5.10, copies (in such format as required by the Company) of all
Free
Writing Prospectuses. All Free Writing Prospectuses described in
this
subsection (e) must be approved by the Company before the
Underwriter
provides the Free Writing Prospectus to investors pursuant to the
terms of
this
Agreement.
(f) Each Underwriter agrees that all information included in
the
Free
Writing Prospectuses shall be prepared, to the extent possible,
based
on
the information contained in the Registration Statement and
anticipated
to
be included in the Prospectus. 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 an
Underwriter
becomes aware 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 the 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
Underwriter shall notify the Company thereof as soon as practical
but
in
any event within one business day after discovery.
(h) If the Underwriter does 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.
(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 pursuant to
subsection (f)
above, 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) Each 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, each 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) Each Underwriter covenants with the Company that after the
final Prospectus is available such 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) Each 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 Each 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 G 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 G
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 Each 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 an
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
an
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. Each 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 an 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. Each 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 the Underwriter that:
5.1 The Company will promptly advise the Underwriter (i) when
any
amendment to the Registration Statement has become effective or any
revision of
or supplement to the Prospectus has been so filed (unless such
amendment,
revision or supplement does not relate to the Certificates), (ii)
of any request
by the Commission for any amendment of the Registration Statement
or the
Prospectus or for any additional information (unless such request
for additional
information does not relate to the Certificates or the trust),
(iii) of any
written notification received by the Company of the suspension of
qualification
of the Certificates for sale in any jurisdiction or the initiation
or
threatening of any proceeding for such purpose and (iv) of the
issuance by the
Commission of any stop order suspending the effectiveness of the
Registration
Statement or the institution or, to the knowledge of the Company,
the
threatening of any proceeding for that purpose. Before amending or
supplementing
the Registration Statement or the Prospectus wit
