EXHIBIT 1.1
BNP PARIBAS MORTGAGE ABS LLC
Mortgage Pass-Through Certificates, Series 200_-__
Approximate Initial
Underwritten
Certificate
Class
Certificate Principal Balance
Interest Rate
-----
-----------------------------
-------------
I-A
$[ ]
Adjustable Rate
I-M-1
$[ ]
Adjustable Rate
I-M-2
$[ ]
Adjustable Rate
I-M-3
$[ ]
Adjustable Rate
UNDERWRITING AGREEMENT
____________, 200_
[Underwriter]
_______________
_______________
Ladies and Gentlemen:
BNP Paribas Mortgage ABS 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, the
Underwriter that as of
the date hereof (or as of such other date as may be
specified in a particular representation and warranty):
(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 "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 __________, 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 Basic
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
does not make any
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
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 organizational 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 Trust
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 Indenture,
when executed and delivered by the Issuer,
will
constitute a legal, valid and binding instrument enforceable against the Issuer
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
Indenture 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 Indenture.
The Certificates are
in all material
respects in the form
contemplated by the
related Indenture.
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 and
the Indenture
(collectively 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 formation or LLC agreement 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) At the time of execution and delivery of the Indenture, the
Company
will own the
mortgage notes (the "Mortgage Notes") being pledged to the
Indenture Trustee
pursuant to the Indenture, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security
interest
(collectively,
"Liens"), except to
the extent permitted in the Indenture, and
will not have assigned
to any person other than the Issuer any of its
right,
title or interest in the Mortgage Notes.
(p) Any taxes, fees and other governmental charges in connection with
the execution,
delivery and issuance of the Transaction Documents and the Note
sand 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
Indenture Trustee or, if applicable, to MERS on behalf of the
Indenture Trustee,
pursuant to the Indenture that have not yet been completed, which fees will be
paid by the Company in accordance with the Indenture.
(q) 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) Such Underwriter hereby acknowledges that each Underwritten
Certificate is to be
maintained on the
book-entry
records of The
Depository
Trust Company ("DTC").
Investors may hold the
beneficial interests
in minimum
denominations of $100,000 and in integral multiples of $1 in excess
thereof.
(b) 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.
(c) 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.
<PAGE>
1.4 The Underwriter covenants and aggress 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 agree 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 Certificates as of
the Closing Date.
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
City 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
shall be made to the Underwriter through the DTC (such
Certificates, the "DTC Registered Notes").
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 relating to Certificates and used
by an
Underwriter in
connection
with marketing the Certificates, including the
Definitive Free Writing Prospectus, 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 ______________.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 an
