EXHIBIT 1.1
AMERICAN HOME MORTGAGE SECURITIES LLC
$_____________ (Approximately)
Mortgage Pass-Through Certificates, Series 200__-__
Class A
$________________
_____%
Class R
$________________
_____%
UNDERWRITING AGREEMENT
______________, 200_
[Underwriter]
Ladies and Gentlemen:
American Home Mortgage Securities LLC, a Delaware limited
liability
company (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 formed and is validly existing as
a
limited liability company in good standing under the laws of the
State of
Delaware and has the requisite 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 that the statemen
