ALLIANCE SECURITIES
CORP.
$_____________
(Approximately)
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 200__-__
UNDERWRITING
AGREEMENT
Alliance Securities Corp., a Delaware
corporation (the “Depositor”), 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
Depositor. 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 Depositor, 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 Depositor has furnished to
you.
1.
Representations Warranties and
Covenants .
1.1 The Depositor represents and warrants to, and
agrees with you that:
(a) The Depositor 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 Depositor 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 Depositor on or prior to the Closing Date
for use in connection with the offering of the Certificates, are
hereinafter called the “Prospectus”. Any preliminary
form of the Prospectus Supplement which 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 Prospectus
Supplement.” The Depositor 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 Depositor 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 Depositor 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 Depositor 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”). 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 Depositor to the
Underwriter in final form and set forth in the Prospectus
Supplement. The Depositor 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. 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 Depositor to the
Underwriter in final form and set forth in the Prospectus
Supplement. The Depositor 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 Depositor has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Delaware and has the requisite corporate power to
own its properties and to conduct its business as presently
conducted by it.
(d) This Agreement has been duly authorized,
executed and delivered by the Depositor.
(e) 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 Depositor 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 Depositor 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 Depositor 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 Depositor 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 Depositor (“DTC”), the
interest in each such class of Certificates sold to any person on
the date of initial sale thereof by the Underwriter shall not be
less than an initial Certificate Principal Balance of
$25,000.
(g) The Underwriter will use its best reasonable
efforts to cause Cede & Co. to issue a commitment letter, prior
to the Closing Date, to DTC stating that Cede & Co. will value
the DTC Registered Certificates (hereinafter defined) on an ongoing
basis subsequent to the Closing Date.
(h) The Underwriter 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 Depositor
maintained at such bank.
(i) As of the date hereof and as of the Closing
Date, the Underwriter has complied with all of its obligations
hereunder including Section 4.2, and, with respect to all
Computational Materials and ABS Term Sheets provided by the
Underwriter to the Depositor pursuant to Section 4.2, if any, such
Computational Materials and ABS Term Sheets are accurate in all
material respects when read in conjunction with the Prospectus
Supplement (taking into account the assumptions explicitly set
forth in the Computational Materials, except to the extent of any
errors therein that are caused by errors in the Pool Information).
The Computational Materials and ABS Term Sheets provided by the
Underwriter to the Depositor constitute a complete set of all
Computational Materials and ABS Term Sheets that are required to be
filed with the Commission.
(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 with respect
to the generation and use of Free Writing Prospectuses in
connection with the offering of the Certificates.
(k) 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 Depositor pursuant to Section 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 Depositor upon demand for (i) any and
all taxes (including penalties and interest) owed or asserted to be
owed by the Depositor 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 Depositor 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 Depositor agrees to sell to you, and you
agree to purchase from the Depositor, the Certificates (other than
for a de minimis portion of the Class R Certificates, which shall
be transferred by the Depositor 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 Depositor in
reliance upon the transfer from the Depositor 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 Depositor (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 Depositor (“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 Depositor 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 Depositor 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 you propose to offer the
Certificates for sale to the public as set forth 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.
(d) 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.
(e) It is understood that you may prepare and
provide to prospective investors certain Free Writing Prospectuses
(as defined below), subject to the following conditions:
1. 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.
2. 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.
3. 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 Depositor 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.
4. 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 Depositor 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.
5. The Underwriter shall have delivered to the
Depositor, 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 Depositor, 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 Depositor under this subsection (e), (i) must be
approved by the Depositor 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
4.1(e)(4)), and (ii) shall be provided by such Underwriter to the
Depositor, for filing as provided in Section 5.10 in the format as
required by the Depositor.
6. None of the information in the Free Writing
Prospectuses may conflict with the information contained in the
Prospectus or the Registration Statement.
7. The Depositor shall not be obligated to file any
Free Writing Prospectuses that have been determined to contain any
material error or omission, unless the Depositor 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 Depositor thereof as soon as practical but in any
event within one business day after discovery.
8. If the Underwriter do not provide any Free
Writing Prospectuses to the Depositor 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 Depositor 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.
9. In the event of any delay in the delivery by the
Underwriter to the Depositor 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 Depositor 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 Depositor to comply
with its agreement set forth in Section 5.10 to file the Free
Writing Prospectuses by the time specified therein.
10. 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.
11. The Underwriter covenants with the Depositor
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.
12. The Underwriter agrees to provide written notice
to the Depositor of the date it first enters into any Contract of
Sale for a Certificate.
(f) 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 Depositor
specifically for use by such Underwriter pursuant to this Section
4.1; for example, if the Prospectus is delivered to the Underwriter
by or on behalf of the Depositor 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 Depositor any Free Writing Prospectuses, or
portions thereof, which the Depositor is required to file with the
Commission in electronic format and will use reasonable efforts to
provide to the Depositor such Free Writing Prospectuses, or
portions thereof, in either Microsoft Word® or Microsoft
Excel® format and not in a PDF, except to the extent that the
Depositor, in its sole discretion, waives such
requirements.
(g) 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.
4.2 It is understood that you may prepare and
provide to prospective investors certain Computational Materials
(as defined below) in connection with your offering of the
Certificates, subject to the following conditions:
(a) The Underwriter shall comply with all applicable
laws and regulations in connection with the use of Computational
Materials, including the No-Action Letter of May 20, 1994 issued by
the Commission to Kidder, Peabody Acceptance Corporation 1, Kidder,
Peabody & Co. Incorporated and Kidder Structured Asset
Corporation, as made applicable to other issuers and underwriters
by the Commission in response to the request of the Public
Securities Association dated May 24, 1994 (collectively, the
“Kidder/PSA Letter”) as well as the PSA Letter referred
to below. The Underwriter shall comply with all applicable laws and
regulations in connection with the use of ABS Term Sheets,
including the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (the “PSA
Letter” and, together with the Kidder/PSA Letter, the
“No-Action Letters”).
(b) For purposes hereof, “Computational
Materials” as used herein shall have the meaning given such
term in the No-Action Letters, but shall include only those
Computational Materials that have been prepared or delivered to
prospective investors by or at the direction of the Underwriter.
For purposes hereof, “ABS Term Sheets” and
“Collateral Term Sheets” as used herein shall have the
meanings given such terms in the PSA Letter but shall include only
those ABS Term Sheets or Collateral Term Sheets that have been
prepared or delivered to prospective investors by or at the
direction of the Underwriter.
(c) All Computational Materials and ABS Term Sheets
provided to prospective investors that are required to be filed
pursuant to the No-Action Letters shall bear a legend on each page
including the following statement:
“THE
INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY [UNDERWRITER].
NEITHER THE ISSUER OF THE CERTIFICATES NOR ANY OF ITS AFFILIATES
MAKES ANY REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF THE
INFORMATION HEREIN. THE INFORMATION HEREIN IS PRELIMINARY, AND WILL
BE SUPERSEDED BY THE APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY
OTHER INFORMATION SUBSEQUENTLY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
In the case of
Collateral Term Sheets, such legend shall also include the
following statement:
“THE
INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE DESCRIPTION
OF THE MORTGAGE POOL CONTAINED IN THE PROSPECTUS SUPPLEMENT
RELATING TO THE CERTIFICATES AND [EXCEPT WITH RESPECT TO THE
INITIAL COLLATERAL TERM SHEET PREPARED BY THE UNDERWRITER]
SUPERSEDES ALL INFORMATION CONTAINED IN ANY COLLATERAL TERM SHEETS
RELATING TO THE MORTGAGE POOL PREVIOUSLY PROVIDED BY [THE
UNDERWRITER].”
The Depositor
shall have the right to require additional specific legends or
notations to appear on any Computational Materials or ABS Term
Sheets, the right to require changes regarding the use of
terminology and the right to determine the types of information
appearing therein. Notwithstanding the foregoing, this subsection
(c) will be satisfied if all such Computational Materials and ABS
Term Sheets bear a legend in the form set forth in Exhibit I
hereto.
(d) The Underwriter shall provide the Depositor with
representative forms of all Computational Materials and ABS Term
Sheets prior to their first use, to the extent such forms have not
previously been approved by the Depositor for use by the
Underwriter. The Underwriter shall provide to the Depositor, for
filing on Form 8-K as provided in Section 5.9, copies (in such
format as required by the Depositor) of all Computational Materials
that are required to be filed with the Commission pursuant to the
No-Action Letters. The Underwriter may provide copies of the
foregoing in a consolidated or aggregated form including all
information required to be filed. All Computational Materials and
ABS Term Sheets described in this subsection (d) must be
prov
