U.S. CITIGROUP MORTGAGE LOAN TRUST INC.
$[__________] (Approximate)
Citigroup Mortgage Loan Trust, Series [_____]
Mortgage Pass-Through Certificates
UNDERWRITING AGREEMENT
New York, New York
[__________], 2006
Citigroup Global Markets Inc.
390 Greenwich Street, 4th Floor
New York, New York 10013
Dear Sir or Madam:
Citigroup Mortgage Loan Trust Inc. (the "Company"), a Delaware
corporation,
proposes to issue Citigroup Mortgage Loan Trust, Series [_____],
Mortgage
Pass-Through Certificates (the "Certificates"), under a Pooling and
Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of
[__________],
among the Company, [__________] as master servicer (the "Master
Servicer" and
"Trust Administrator"), [__________] (the Paying Agent, Certificate
Registrar
and Authenticating Agent") and [__________] as trustee (the
"Trustee"), and
proposes to sell the Registered Certificates (as defined below) to
the
underwriters named in Schedule II hereto (the "Underwriters"), for
whom you are
acting as representative (the "Representative"). If the firm or
firms listed in
Schedule II hereto include only Citigroup Global Markets Inc., then
the terms
"Underwriters" and "Representative," as used herein, shall each be
deemed to
refer to Citigroup Global Markets Inc. The Certificates are
designated as (i)
the Class I-A1A Certificates, the Class I-A1B Certificates, the
Class I-A12B
Certificates, the Class I-A3A Certificates, the Class I-A4A
Certificates, the
Class I-A34B Certificates, the Class I-A5A Certificates, the Class
I-A5B
Certificates, the Class I-B1 Certificates, the Class I-B2
Certificates, the
Class I-B3 Certificates, the Class I-B4 Certificates, the Class
I-B5
Certificates, the Class I-B6 Certificates, the Class I-P
Certificates and the
Class I-R Certificates (collectively, the "Group I Certificates"),
(ii) the
Class II-A1 Certificate, the Class II-A2 Certificates, the Class
II-B1
Certificates, the Class II-B2 Certificates, the Class II-B3
Certificates, the
Class II-B4 Certificates, the Class II-B5 Certificates, the Class
II-B6
Certificates, and the Class II-R Certificates (collectively, the
"Group II
Certificates").
The
Certificates will represent in the aggregate the entire
beneficial
ownership interest in a trust fund (the "Trust Fund") consisting
primarily of a
segregated pool (the "Mortgage Pool") of one- to four-family,
adjustable-rate
and fixed-rate, first lien mortgage loans (the "Mortgage Loans").
Each Mortgage
Loan provides for an original term to maturity of not greater than
30 years. The
Mortgage Loans will be acquired by the Company from Citigroup
Global Markets
Realty Corp. (the "Seller") in exchange for immediately available
funds
representing the purchase price. The Certificates are described
more fully in
Schedule I hereto. The Class I-A1A Certificates, the Class I-A2A
Certificates,
the Class I-A12B Certificates, the Class I-A3A Certificates, the
Class I-A4A
Certificates, the Class I-A34B Certificates, the Class I-A5A
Certificates, the
Class I-A5B Certificates, the Class I-B1 Certificates, the Class
I-B2
Certificates, the Class I-B3 Certificates and the Class I-R
Certificates
(collectively, the "Registered Certificates") are more fully
discussed in a
registration statement which the Company has furnished to you. This
is to
confirm the arrangements with respect to your purchase of the
Registered
Certificates.
Capitalized terms used but not defined herein shall have the
meanings
assigned thereto in the Pooling and Servicing Agreement.
1.
REPRESENTATIONS AND WARRANTIES: The Company represents and warrants
to,
and agrees with, each Underwriter that:
(a)
The Company has filed with the Securities and Exchange Commission
(the
"Commission") a registration statement on Form S-3 (the file number
of which is
set forth in Schedule I hereto), for the registration of the
Registered
Certificates under the Securities Act of 1933, as amended (the
"1933 Act"),
which registration statement has become effective and copies of
which have
heretofore been delivered to you. Such registration statement, as
amended as of
the date hereof, meets the requirements set forth in Rule
415(a)(1)(vii) under
the 1933 Act and complies in all other material respects with the
1933 Act and
the rules and regulations thereunder. The Company proposes to file
with the
Commission pursuant to Rule 424 under the 1933 Act a supplement to
the form of
prospectus included in such registration statement relating to the
Registered
Certificates and the plan of distribution thereof, and has
previously advised
you of all further information (financial and other) with respect
to the
Certificates and the Mortgage Pool to be set forth therein. Such
registration
statement, including the exhibits thereto, as amended as of the
date hereof, is
hereinafter called the "Registration Statement"; the prospectus
included in the
Registration Statement after the Registration Statement, as
amended, became
effective, or as subsequently filed with the Commission pursuant to
Rule 424
under the 1933 Act, is hereinafter called the "Basic Prospectus";
the form of
prospectus supplemented by the supplement to the form of prospectus
relating to
the Registered Certificates, in the form in which it shall be first
filed with
the Commission pursuant to Rule 424 (including the Basic Prospectus
as so
supplemented) is hereinafter called a "Final Prospectus." Any
preliminary form
of any Final Prospectus that has heretofore been filed pursuant to
Rule 424 or,
prior to the effective date of the Registration Statement, pursuant
to Rule
402(a) or 424(a), is hereinafter called a "Preliminary Final
Prospectus." As
used herein, "Collateral 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 Underwriters in
final form and
set forth in the Prospectus Supplement. The Company will file with
the
Commission a report on Form 8-K setting forth specific information
concerning
the Registered Certificates and the Mortgage Pool to the extent
that such
information is not set forth in the Final 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").
The Definitive Free Writing Prospectus must be provided to each
investor prior
to the time of Contract of Sale (as defined herein).
(b)
As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the 1933 Act, when, prior to the Closing
Date (as
hereinafter defined), any amendment to the Registration Statement
becomes
effective, when any supplement to the Final Prospectus is filed
with the
Commission, and at the Closing Date, (i) the Registration
Statement, as amended
as of any such time, and the Final Prospectus, as amended or
supplemented as of
any such time, comply and will comply in all material respects with
the
applicable requirements of the 1933 Act and the rules and
regulations
thereunder, (ii) the Registration Statement, as amended as of any
such time,
does not and will not contain any untrue statement of material fact
and does not
and will not omit to state any material fact required to be stated
therein or
necessary in order to make the statements therein not misleading,
and (iii) the
Final Prospectus, as amended or supplemented as of any such time,
do not and
will not contain any untrue statement of a material fact and do not
and will not
omit to state a material fact necessary 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 (i) the
information contained in or omitted from the Registration Statement
or Final
Prospectus or any amendment thereof or supplement thereto in
reliance upon and
in conformity with the information furnished in writing to the
Company by or on
behalf of any Underwriter through the Representative specifically
for use in
connection with the preparation of the Registration Statement and
the Final
Prospectus as set forth on Exhibit A hereto (the "Underwriter's
Information") or
(ii) Derived Information in any Computational Materials or ABS Term
Sheets
required to be provided by the Underwriter to the Company pursuant
to Section
4(b). In addition, the Definitive Free Writing Prospectus, as of
the date
thereof and as of the Closing Date, did not and 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. 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.
(c) 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.
(d) The Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware with full
power and authority (corporate and other) to own its properties and
conduct its
business as now conducted by it and to enter into and perform its
obligations
under (i) this Agreement, (ii) the Mortgage Loan Purchase
Agreement, dated as of
[__________] (the "Mortgage Loan Purchase Agreement"), between the
Company and
the Seller and (iii) the Pooling and Servicing Agreement; and the
Company has
received no notice of proceedings relating to the revocation or
modification of
any license, certificate, authority or permit applicable to its
owning such
properties or conducting such business which singly or in the
aggregate, if the
subject of an unfavorable decision, ruling or finding, would
materially and
adversely affect the conduct of the business, operations, financial
condition or
income of the Company.
(e)
As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the 1933 Act, when, prior to the Closing
Date (as
hereinafter defined), any amendment to the Registration Statement
becomes
effective, when any supplement to the Final Prospectus is filed
with the
Commission, and at the Closing Date, there has not and will not
have been (i)
any request by the Commission for any further amendment of the
Registration
Statement or the Final Prospectus or for any additional
information, (ii) any
issuance by the Commission of any stop order suspending the
effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for
that purpose or (iii) any notification with respect to the
suspension of the
qualification of the Registered Certificates for sale in any
jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(f)
This Agreement and the Mortgage Loan Purchase Agreement have been,
and
the Pooling and Servicing Agreement when executed and delivered as
contemplated
hereby and thereby will have been, duly authorized, executed and
delivered by
the Company and each constitutes, or will constitute when so
executed and
delivered, a legal, valid and binding agreement of the Company,
enforceable
against the Company in accordance with its terms, except as
enforceability may
be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium,
reorganization or other similar laws affecting the enforcement of
the rights of
creditors, (ii) general principles of equity, whether enforcement
is sought in a
proceeding in equity or at law and (iii) public policy
considerations underlying
the securities laws, to the extent that such public policy
considerations limit
the enforceability of the provisions of this Agreement that purport
to provide
indemnification from securities law liabilities.
(g)
The Certificates and the Pooling and Servicing Agreement will
conform
in all material respects to the description thereof contained in
the Final
Prospectus, and the Certificates, when duly and validly authorized,
executed,
authenticated and delivered in accordance with the Pooling and
Servicing
Agreement and paid for by the Underwriters as provided herein, will
be entitled
to the benefits of the Pooling and Servicing Agreement. On the
Closing Date, the
Pooling and Servicing Agreement will be effective to establish the
Trust Fund as
a valid trust under the laws of the State of New York.
(h)
As of the Closing Date, the Mortgage Loans will meet the criteria
for
selection described in the Final Prospectus.
(i)
Neither the issuance and sale of the Certificates, nor the
execution
and delivery by the Company of this Agreement, the Mortgage Loan
Purchase
Agreement or the Pooling and Servicing Agreement, nor the
consummation by the
Company of any of the transactions herein or therein contemplated,
nor
compliance by the Company with the provisions hereof or thereof,
will conflict
with or result in a breach of any term or provision of the
certificate of
incorporation or by-laws of the Company or conflict with, result in
a breach,
violation or acceleration of or constitute a default under, the
terms of any
indenture or other agreement or instrument to which the Company or
any of its
affiliates is a party or by which it or any of them is bound, or
any statute,
order or regulation applicable to the Company or any of its
affiliates of any
court, regulatory body, administrative agency or governmental body
having
jurisdiction over the Company or any of its affiliates. Neither the
Company nor
any of its affiliates is a party to, bound by or in breach or
violation of any
indenture or other agreement or instrument, or subject to or in
violation of any
statute, order or regulation of any court, regulatory body,
administrative
agency or governmental body having jurisdiction over it, which
materially and
adversely affects, or may in the future materially and adversely
affect, (i)
validity or enforceability of, or the ability of the Company to
perform its
obligations under, this Agreement, the Mortgage Loan Purchase
Agreement or the
Pooling and Servicing Agreement or (ii) the business, operations,
financial
conditions, properties or assets of the Company.
(j)
There are no actions or proceedings against, or investigations of,
the
Company pending, or, to the knowledge of the Company, threatened,
before any
court, administrative agency or other tribunal (i) asserting the
invalidity of
this Agreement, the Mortgage Loan Purchase Agreement, the Pooling
and Servicing
Agreement or the Certificates, (ii) seeking to prevent the issuance
of the
Certificates or the consummation of any of the transactions
contemplated by this
Agreement, the Mortgage Loan Purchase Agreement or the Pooling and
Servicing
Agreement, (iii) that might materially and adversely affect the
performance by
the Company of its obligations under, or the validity or
enforceability of, this
Agreement, the Mortgage Loan Purchase Agreement, the Pooling and
Servicing
Agreement or the Certificates, or (iv) seeking to affect adversely
the federal
income tax attributes of the Certificates as described in the Final
Prospectus.
(k)
There has not been any material adverse change in the business,
operations, financial condition, properties or assets of the
Company since
[__________].
(l)
Any taxes, fees and other governmental charges payable by the
Company
in connection with the execution, delivery and issuance of this
Agreement, the
Mortgage Loan Purchase Agreement and the Pooling and Servicing
Agreement or the
execution, delivery and sale or transfer of the Certificates have
been or will
be paid at or prior to the Closing Date.
(m)
The Company is not, and the issuance and sale of the Certificates
in
the manner contemplated by the Final Prospectus will not cause the
Company to
be, subject to registration or regulation as an investment company
or affiliate
of an investment company under the Investment Company Act of 1940,
as amended
(the "Investment Company Act").
(n)
The transfer of the Mortgage Loans to the Trust Fund at the
Closing
Date will be treated by the Company for financial accounting and
reporting
purposes as a sale of assets and not as a pledge of assets to
secure debt.
2.
PURCHASE AND SALE. Subject to the terms and conditions and in
reliance
upon the representations and warranties set forth herein, the
Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally
and not
jointly, to purchase from the Company on the Closing Date, at the
applicable
purchase price set forth in Schedule I hereto, the Certificates set
forth
opposite such Underwriter's name in Schedule II hereto.
3.
DELIVERY AND PAYMENT. Delivery of and payment for the
Registered
Certificates shall be made in the manner, on the date and at the
time specified
in Schedule I hereto (or such later date not later than seven
business days
after such specified date as the Representative shall designate),
which date and
time may be postponed by agreement between the Representative and
the Company or
as provided in this Agreement (such date and time of delivery and
payment for
the Certificates being herein called the "Closing Date"). Delivery
of the
Registered Certificates, as set forth on Schedule I hereto, shall
be made to the
Representative for the respective accounts of the several
Underwriters against
payment in same day Federal funds by the several Underwriters of
the applicable
purchase price. The Registered Certificates shall be registered in
such names
and in such authorized denominations as the Representative may
request not less
than three full business days in advance of the Closing Date.
The
Company agrees to have the Certificates available for
inspection,
checking and packaging by the Representative in New York, New York,
not later
than 1:00 p.m. New York time on the business day prior to the
Closing Date.
4.
OFFERING BY UNDERWRITERS.
(a)
It is understood that the several Underwriters propose to offer
the
Certificates that are Registered Certificates for sale to the
public as set
forth in the Final Prospectus.
(b)
[Reserved].
(c)
It is understood that the Underwriters will solicit offers to
purchase
the Certificates as follows:
(i) 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.
(ii) 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 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.
(iii) 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
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.
(d)
It is understood that you will not enter into a Contract of Sale
with
any investor until the Definitive Free Writing Prospectus has been
conveyed to
the investor. 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. The Definitive Free Writing Prospectus shall
prominently
set forth substantially 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.
(e)
It is understood that the Underwriters may prepare and provide
to
prospective investors certain Free Writing Prospectuses (as defined
below),
subject to the following conditions:
(i) Unless preceded or accompanied by a prospectus satisfying
the
requirements of Section 10(a) of the Act, the Underwriters 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, or Permitted Additional Materials.
(ii) 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.
(iii) 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 C 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
the
Underwriters. "Permitted Additional Materials" shall mean
information that
is
not ABS Informational and Computational Materials and (x) that
are
referred to in Section 4(e)(xii)), (y) that constitute Certificate
price,
yield, weighted average life, subscription or allocation
information, or a
trade confirmation, or (z) otherwise with respect to which the
Company has
provided written consent to the Underwriters to include in a Free
Writing
Prospectus. As used herein with respect to any Free Writing
Prospectus,
"Pool Information" means the 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
Underwriters at the
time
most recent to the date of such Free Writing Prospectus.
(iv) All Free Writing Prospectuses provided to prospective
investors,
whether or not filed with the Commission, shall bear a legend
including
substantially the following statement:
"THE COMPANY 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
"WWW.[COMPANY.COM/PROSPECTUS/____", OR AT UNDERWRITER 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 [__________] OR VIA E-MAIL
AT
________________________."
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 with the approval of the
Underwriters (which shall not be unreasonably withheld).
(v) The Underwriters shall deliver to the Company and its counsel
(in
such
format as required by the Company) 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 prepared by that Underwriter
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
(other than
the
Definitive Free Writing Prospectus) shall consist of information of
a
type
that is not included within the definition of ABS Informational
and
Computational Materials, or is not Permitted Additional Materials.
To
facilitate filing to the extent required by Section 5(b) or 4(g),
as
applicable, all Underwriter Derived Information shall be set forth
in a
document separate from the document including Issuer Information.
All Free
Writing Prospectuses described in this subsection (v) must be
approved by
the
Company before the Underwriters provide the Free Writing Prospectus
to
investors pursuant to the terms of this Agreement. Notwithstanding
the
foregoing, the Underwriters shall not be required to deliver any
Free
Writing Prospectus to the extent that it does not contain
substantive
changes from or additions to any Free Writing Prospectus
previously
approved by the Company.
(vi) The Underwriters shall provide the Company with a letter
from
[__________], certified public accountants, prior to the Closing
Date, with
respect to any Free Writing Prospectus provided by that Underwriter
to the
Company under Section 4(e)(v), satisfactory in form and substance
to the
Company and their counsel and the Underwriters, to the effect that
such
accountants have performed certain specified procedures, all of
which have
been
agreed to by the Company and the Underwriters, as a result of
which
they
determined that all accounting, financial or statistical
information
that
is included in such Free Writing Prospectus, is accurate except as
to
such
matters that are not deemed by the Company and the Underwriters to
be
material. The foregoing letter shall be at the expense of the
respective
Underwriter.
(vii) None of the information in the Free Writing Prospectuses
may
conflict with the information contained in the Prospectus or
the
Registration Statement.
(viii) 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(b) 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 that 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"), such
Underwriter shall notify the Company thereof as soon as practical
but in
any
event within one business day after discovery.
(ix) If any Underwriter does not provide any Free Writing
Prospectuses
to
the Company pursuant to subsection (v) above, that Underwriter
shall be
deemed to have represented, as of the Closing Date, that it 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.
(x) In the event of any delay in the delivery by the Underwriters
to
the
Company of any Free Writing Prospectuses required to be delivered
in
accordance with subsection (v) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to
subsection (vi)
above, the Company shall have the right to delay the release of
the
Prospectus to investors or to the Underwriters, 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(b) to
file
the Free Writing Prospectuses by the time specified therein.
(xi) The Underwriters represent 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 Underwriters shall,
for a
period of at least three years after the date hereof, maintain
written
and/or electronic records of any Free Writing Prospectus used to
solicit
offers to purchase Certificates to the extent not filed with
the
Commission;
(xii) It is understood and agreed that all information provided by
any
Underwriter to or through Bloomberg or Intex or similar entities
for use by
prospective investors, or imbedded in any CDI file provided to
prospective
investors, to the extent constituting a Free Writing Prospectus,
shall be
deemed for all purposes hereof to be a Free Writing Prospectus
not
containing Issuer Information. In connection therewith, the
Underwriters
agree that it shall not provide any information constituting
Issuer
Information through the foregoing media unless that information
is
contained either in the Definitive Free Writing Prospectus or in a
Free
Writing Prospectus delivered in compliance with Section
4(e)(v).
(f) The Underwriters covenant 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. It
is
understood and agreed that the use of written information in
accordance
with
the preceding sentence is not a Free Writing Prospectus and is
not
otherwise restricted or governed in any way by this Agreement.
(g) The Underwriters shall file any Free Writing Prospectus that
has
been
distributed by that Underwriter in a manner that could lead to
its
broad, unrestricted dissemination not later than the date of first
use,
provided that if that Free Writing Prospectus contains only
information of
a
type included within the definition of ABS Informational and
Computational Materials then such filing shall be made within the
later of
two
business days after the Underwriters first provide this information
to
investors and the date upon which the Company is required to file
the
Prospectus Supplement with the Commission pursuant to Rule
424(b)(3) of the
1933
Act Regulations; provided further, that the Company shall not
be
required to file any Free Writing Prospectus that does not
contain
substantive changes from or additions to a Free Writing
Prospectus
previously filed with the Commission.
(h) The Underwriters further agree that (i) if the Prospectus is
not
delivered with the confirmation in reliance on Rule 172, 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(h) ;
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. 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.
(i) Each Underwriter hereby represents and agrees to the terms
set
forth in Exhibit B hereto which are incorporated herein by
reference.
5. AGREEMENTS. The Company agrees with the several Underwriters
that:
(a) The Company will not file any amendment to the Registration
Statement or supplement to (including the supplement relating to
the
Registered Certificates included in the Final Prospectus) the
Basic
Prospectus, unless the Company has furnished to you a copy for your
review
prior to filing, and will not file or distribute any such
proposed
amendment or supplement to which you reasonably object. Subject to
the
foregoing sentence,
the Company will cause the Final Prospectus to be
transmitted to the Commission for filing pursuant to Rule 424 under
the
1933
Act. The Company will promptly advise the Representative (i) when
the
Final Prospectus shall have been filed or transmitted to the
Commission for
filing pursuant to Rule 424, (ii) when any amendment to the
Registration
Statement shall have become effective, (iii) of any request by
the
Commission for any amendment of the Registration Statement or the
Final
Prospectus or for any additional information, (iv) of the issuance
by the
Commission of any stop order suspending the effectiveness of
the
Registration Statement or the institution or threatening of any
proceeding
for that purpose and
(v) of the receipt by the Company of any notification
with
respect to the suspension of the qualification of the
Registered
Certificates for sale in any jurisdiction or the initiation or
threatening
of
any proceeding for such purpose. The Company will use its best
efforts
to
prevent the issuance of any such stop order or suspension and,
if
issued, to obtain as soon as possible the withdrawal thereof.
(b)
The Company shall file any Free Writing Prospectus prepared by
the
Company (including the Definitive Free Writing Prospectus), an
