Exhibit 1.1
Execution Copy
NYMT SECURITIES
CORPORATION
New York Mortgage Trust, Series
2005-3 Mortgage-Backed Notes
UNDERWRITING
AGREEMENT
December 16, 2005
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
1. Introduction . NYMT
Securities Corporation, a Delaware corporation (the
“Depositor”), has authorized the issuance and sale of
Mortgage-Backed Notes (the “Notes”) and Mortgage-Backed
Certificates (the “Certificates” and together with the
Notes, the “Securities”) in one or more series (each, a
“Series”). This Underwriting Agreement (the
“Underwriting Agreement”) relates to offers and sales
of Series of Notes.
Each Note will generally be payable
out of the cash flows attributable to the property of each Trust,
which will consist of one or more pools of mortgage loans (the
“Mortgage Loans”) and certain related property to be
conveyed to the Trust by the Depositor. The Mortgage Loans may be
sold to the Depositor pursuant to one or more Mortgage Loan
Purchase Agreements (each, an “Mortgage Loan Purchase
Agreement”), between the Depositor, as purchaser, New York
Mortgage Trust, Inc., as guarantor, and New York Mortgage Funding,
LLC, as seller (the “Seller”). The Notes of any Series
will be issued pursuant to a Transfer and Servicing Agreement (the
“Transfer and Servicing Agreement”) and an Indenture,
among the Trust, the Depositor, the Seller, the Master Servicer,
the Servicer, the Subservicer, the Owner Trustee, the Indenture
Trustee and the Trust Administrator, as applicable. Reference is
also made to the Amended and Restated Trust Agreement, dated
December 20, 2005 (the “Trust Agreement”).
Capitalized terms used herein and not defined, shall have the
meaning set forth in the Transfer and Servicing Agreement or the
related Terms Agreement (as defined below).
The Notes are more fully described
in the Registration Statement (as such term is defined in
Section 2(a)), which the Depositor has furnished to the
Underwriter (as defined below). Each Series of Notes and any
classes or subclasses of Notes (each, a “Class” or
“Subclass”, respectively) within such Series may vary,
among other things, as to number and types of Classes or
Subclasses, aggregate class principal amount or class notional
amount or aggregate class principal amount, the interest rate with
respect to each Class or Subclass, the percentage interest if any,
entitled by each Class or Subclass to payments of principal and
interest on, or with respect to, the Notes payable out of cash
flows attributable to the Mortgage Loans included in the related
Trust, the class principal amount and interest rate, if any,
priority of payment among Classes or Subclasses, the method of
credit enhancement with respect to the Notes for such Series, the
Classes or Subclasses of Notes of such Series subject to this
Agreement, and any
other variable terms contemplated by the
Operative Agreements and in the Notes of such Series. For federal
income tax purposes, the Notes will be characterized as debt to the
extent they are issued to parties unrelated to the equity owner of
the Trust and are rated at least “BBB-” or the
equivalent by one or more Rating Agencies.
The Depositor will enter into an
agreement (the “Terms Agreement”) providing for the
sale of such Notes to, and the purchase and offering thereof by,
Credit Suisse First Boston LLC (the “Underwriter”). The
Underwriter agrees to become obligated to purchase Notes from the
Depositor. Such Terms Agreement shall specify the class principal
amount or class notional amount of each Class or Subclass of the
Notes to be issued and their terms not otherwise specified in the
Operative Agreements, the Classes or Subclasses of Notes subject to
this Agreement, the price at which such Notes are to be purchased
by the Underwriter from the Depositor, the aggregate amount of
Notes to be purchased by the Underwriter and the initial public
offering price or the method by which the price at which such Notes
are to be sold will be determined. The Terms Agreement, which shall
be substantially in the form of Exhibit A hereto, which may take
the form of an exchange of any standard form of written
telecommunication between the Underwriter and the Depositor. Each
offering of Notes will be governed by this Agreement, as
supplemented by the applicable Terms Agreement, and this Agreement
and such Terms Agreement shall inure to the benefit of and be
binding upon the Underwriter. Except as otherwise required by the
context, all references herein to a Terms Agreement, Delivery Date,
the related Operative Agreements and Underwriter shall refer to the
Terms Agreement, Delivery Date, the related Operative Agreements
and Underwriter, relating to the related Series of
Notes.
2. Representations and Warranties
of the Depositor . The Depositor represents and warrants to the
Underwriter as of the date hereof and as of the date of the
applicable Terms Agreement, as follows:
(a) A registration statement on Form
S-3 (No. 333-127912) including a prospectus and such amendments
thereto as may have been required on the date hereof relating to
the Notes and the offering of each Series thereof from time to time
in accordance with Rule 415 under the Securities Act of 1933, as
amended (the “Act”), has been filed with the Securities
and Exchange Commission (the “Commission”) and such
registration statement, as amended, has become effective under the
Act. For purposes of this Agreement, “Effective Time”
means the date and time as of which such registration statement, or
the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared
effective by the Commission and “Effective Date” means
the date of the Effective Time. Such registration statement, as
amended, and the prospectus relating to the sale of the Notes of
the applicable Series offered thereby constituting a part thereof,
as from time to time amended or supplemented (including any
prospectus relating to the Notes filed with the Commission pursuant
to Rule 424(b) of the rules and regulations of the Commission
promulgated under the Act (the “Rules and
Regulations”)), including all documents incorporated therein
by reference relating to the Series of Notes to which the Terms
Agreement relates, are respectively referred to as the
“Registration Statement” and the “Base
Prospectus”; provided, however, that a supplement to such
Base Prospectus prepared pursuant to Section 5(a) shall be
deemed to have supplemented the Base Prospectus only with respect
to the offering of the Series of Notes to which it relates (any
such supplement for a Series
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of Notes, the “Prospectus
Supplement” and together with the Base Prospectus, the
“Prospectus”). Reference made herein to the Prospectus
shall be deemed to refer to and include any documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the
Act as of the date of the Prospectus and any reference to any
amendment or supplement to the Prospectus shall be deemed to refer
to and include any document filed under the Securities Exchange Act
of 1934 (the “Exchange Act”) after the date of the
Prospectus and incorporated by reference in the Prospectus and any
reference to any amendment to the Registration Statement shall be
deemed to include any report of the Depositor filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act after the Effective Time that is incorporated by reference in
the Registration Statement. The Commission has not issued any order
preventing or suspending the use of the Prospectus or the
effectiveness of the Registration Statement and no proceedings for
such purpose are pending or, to the Depositor’s knowledge,
threatened by the Commission. There are no contracts or documents
of the Depositor which are required to be filed as exhibits to the
Registration Statement pursuant to the Act or the Rules and
Regulations which have not been so filed or incorporated by
reference therein on or prior to the Effective Date of the
Registration Statement. The conditions to the use of a registration
statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, and the conditions of Rule 415 under the
Act, have been satisfied with respect to the Registration
Statement.
(b) The Registration Statement and
the Prospectus conform, and any further amendments or supplements
to the Registration Statement or the Prospectus will conform, when
they become effective or are filed with the Commission, as the case
may be, in all material respects to the requirements of the Act and
the Rules and Regulations. The Registration Statement, as of the
Effective Date thereof and of any amendment thereto, did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus for a Series
of Notes identified in the related Terms Agreement, as of its date,
and as amended or supplemented as of the Closing Date, does not and
will not contain any untrue statement of a material fact or 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 that no representation or warranty
is made as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Depositor in
writing by the Underwriter expressly for use therein, it being
understood that such information is limited to the information
identified in the related Terms Agreement as the
“Underwriter’s Information.” The Depositor
acknowledges that the Underwriter’s Information constitutes
the only information furnished in writing to you or on your behalf
for use in connection with the preparation of the Prospectus
Supplement, and the Underwriter confirms that the
Underwriter’s Information is correct. The Prospectus
delivered to the Underwriter for use in connection with the
offering of the related Series of Notes was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval
system, except to the extent permitted by Regulation
S-T.
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(c) The documents incorporated by
reference in the Prospectus, when they were filed with the
Commission, conformed in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and any further documents
so filed and incorporated by reference in the Prospectus, when such
documents are filed with the Commission, will conform in all
material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder.
(d) The Depositor has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with full corporate power
and authority to own its assets and conduct its business as
described in the Prospectus, is duly qualified as a foreign
corporation in good standing in all jurisdictions in which the
ownership or lease of its property or the conduct of its business
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the
Depositor, and is conducting its business so as to comply in all
material respects with the applicable statutes, ordinances, rules
and regulations of the jurisdictions in which it is conducting
business.
(e) There are no actions,
proceedings or investigations pending with respect to which the
Depositor has received service of process or, to the knowledge of
the Depositor, threatened by or before any court, administrative
agency or other tribunal to which the Depositor is a party or of
which any of its properties is the subject (i) which if
determined adversely to the Depositor would have a material adverse
effect on the business or financial condition of the Depositor,
(ii) asserting the invalidity of any of the Operative
Agreements or the related Series of Notes, (iii) seeking to
prevent the issuance of the related Series of Notes or the
consummation by the Depositor of any of the transactions
contemplated by any of the Operative Agreements or (iv) which
might materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or
enforceability of, any of the Operative Agreements or the related
Series of Notes.
(f) The related Operative Agreements
and the related Notes conform, or will conform as of the related
Delivery Date, to the description thereof contained in the
Registration Statement, the related Prospectus and any Issuer Free
Writing Prospectus; and the Notes of a Series, on the Delivery Date
set forth in the related Terms Agreement, will have been duly and
validly authorized and, when such Notes are duly and validly
executed by the Trust, authenticated by the Indenture Trustee or
the Trust Administrator and delivered in accordance with such
Operative Agreements and delivered and paid for as provided herein,
will be validly issued and outstanding and entitled to the benefits
afforded by the related Operative Agreements.
(g) The execution and delivery by
the Depositor of this Agreement and the other related Operative
Agreements to which it is a party are within the corporate power of
the Depositor and have been, or will have been on the related
Delivery Date, duly authorized by all necessary corporate action on
the part of the Depositor; and neither the execution and delivery
by the Depositor of such instruments, nor the consummation by the
Depositor of the transactions herein or therein contemplated, nor
the compliance by
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the Depositor with the provisions
hereof or thereof, will (i) conflict with or result in a
breach of, or constitute a default under, any of the provisions of
the certificate of incorporation or by-laws of the Depositor,
(ii) conflict with any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on
the Depositor or its properties, (iii) conflict with any of
the provisions of any indenture, mortgage, contract or other
instrument to which the Depositor is a party or by which it is
bound, or (iv) result in the creation or imposition of any
lien, charge or encumbrance upon any of its property pursuant to
the terms of any such indenture, mortgage, contract or other
instrument.
(h) At the date thereof, each
Agreement to which the Depositor is a party will constitute a
legal, valid and binding obligation of the Depositor, enforceable
against the Depositor in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other similar laws affecting
creditors’ rights generally from time to time in effect, and
to general principles of equity.
(i) All approvals, authorizations,
consents, orders or other actions of any person, corporation or
other organization, or of any court, governmental agency or body or
official (except with respect to the state securities or Blue Sky
laws of various jurisdictions), required in connection with the
valid and proper authorization, issuance and sale of the Notes of
the related Series pursuant to this Agreement and the other related
Operative Agreements has been or will be taken or obtained on or
prior to the applicable Delivery Date.
(j) At the applicable Delivery Date,
each of the Mortgage Loans included in the Trust will conform to
the representations and warranties with respect thereto set forth
in the related Mortgage Loan Purchase Agreement and the Depositor
will (i) have equitable title to the interest in the Mortgage
Loans, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest
(collectively, “Liens”), (ii) not have assigned to
any person (other than the Trust) any of its right, title or
interest in the Mortgage Loans, and (iii) have the power and
authority to sell its interest in the Mortgage Loans to the Trust
and to sell the related Series of Notes to the Underwriter. Upon
execution and delivery of the related Transfer and Servicing
Agreement by the Owner Trustee, the Owner Trustee will have
acquired beneficial ownership of all of the Depositor’s title
and interest in and to the Mortgage Loans, which will in turn be
pledged to the Indenture Trustee in accordance with the terms of
the Indenture.
(k) If so specified in the
Prospectus and any Issuer Free Writing Prospectus, certain of the
Notes subject to this Agreement and offered by means of the
Registration Statement may, when issued pursuant to the Indenture,
be “mortgage related securities”, as such term is
defined in Section 3(a)(41) of the Exchange Act.
(l) Neither the Depositor nor the
Trust will be subject to registration as an investment company
under the Investment Company Act of 1940, as amended (the
“Investment Company Act”).
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(m) Since the respective dates as of
which information provided by the Seller or the Depositor is given
in the Prospectus and any Issuer Free Writing Prospectus, there has
not been any material adverse change in the general affairs,
management, financial condition, or results of operations of the
Depositor or any Seller, otherwise than as set forth or
contemplated in the Prospectus as supplemented or amended as of the
Closing Date.
(n) Any certificate signed by an
officer of the Depositor and delivered to the Underwriter or
counsel for the Underwriter in connection with an offering of the
Notes shall be deemed, and shall state that it is, a representation
and warranty of the Depositor as to the matters covered thereby on
the date of such certificate to each person to whom the
representations and warranties in this Section 2 are
made.
(o) As of the date of delivery,
there are no Mortgage Pool Errors (as defined below) in any of the
information provided to the Underwriter regarding the Mortgage
Loans and such information is true and correct in all material
respects or, if there is any material error in any such
information, the Depositor has promptly provided corrected
information to the Underwriter.
(p) On the Closing Date, the
Mortgage Loans will conform in all material respects to the
description thereof contained in the Prospectus and any Issuer Free
Writing Prospectus and the representations and warranties contained
in this Agreement will be true and correct in all material
respects. The representations and warranties of the Seller and the
Depositor set out in the Transfer and Servicing Agreement are
hereby made to the Underwriter as though set out herein, and at the
dates specified therein, such representations and warranties were
and will be true and correct in all material respects.
(q) Each of the Seller and the
Depositor possess all material licenses, certificates, permits or
other authorizations issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the
business now operated by it and as described in the Prospectus and
there are no proceedings pending or, to the best knowledge of the
Depositor, threatened, relating to the revocation or modification
of any such license, certificate, permit or other authorization
which singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect
the business, operations, results of operations, financial
position, income, property or assets of either the Seller or the
Depositor.
(r) The Depositor is not aware of
(i) any request by the Commission for any further amendment of
the Registration Statement or the Prospectus or for any additional
information, (ii) 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,
or (iii) any notification with respect to the suspension of
the qualification of the related Series of Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(s) The Depositor is not, as of the
date upon which it delivers the Approved Offering Materials (as
defined herein), an Ineligible Issuer, as such term is defined
in
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Rule 405 of the Rules and
Regulations. “Approved Offering Materials” means the
offering materials provided by (or agreed with) the Depositor to
the Underwriter.
(t) Any Issuer Free Writing
Prospectus conforms in all material respects to the requirements of
the Act and the Rules and Regulations. The Issuer Free Writing
Prospectus as of the date thereof and as of the Closing Date does
not and will not contain any untrue statement of a material fact or
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 that no representation or
warranty is made as to information contained in or omitted from the
Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Depositor in writing by
the Underwriter expressly for use therein, it being understood that
such information is limited to the information identified in the
related Terms Agreement as the “Underwriter’s
Information.” The Depositor acknowledges that the
Underwriter’s Information constitutes the only information
furnished in writing to you or on your behalf for use in connection
with the preparation of the Issuer Free Writing Prospectus, dated
December 16, 2005 (the “December 16 Issuer Free Writing
Prospectus”) and the Underwriter confirms that the
Underwriter’s Information is correct. Any Issuer Free Writing
Prospectus delivered to the Underwriter for use in connection with
the offering of the related Series of Notes will be identical to
the electronically transmitted copies thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system, except to the extent permitted by Regulation
S-T.
3. Purchase, Sale and Delivery of
Notes . Delivery of and payment for each Series of Notes to
which this Agreement applies will be made at such time and location
as is specified in the related Terms Agreement, or as the
Underwriter and the Depositor shall agree upon, each such time
being herein referred to as a “Delivery Date.” Delivery
of such Notes shall be made by the Depositor to the Underwriter
against payment of the purchase price specified in the applicable
Terms Agreement in same day funds wired to such bank as may be
designated by the Depositor, or by such other manner of payment as
may be agreed upon by the Depositor and the Underwriter. Except as
otherwise provided in the related Terms Agreement, each Class of
Notes of a Series sold to the Underwriter pursuant to such Terms
Agreement will be represented initially by one or more notes
registered in the name of Cede & Co., the nominee of the
Depository Trust Company (the “DTC Notes”). The
interests of the beneficial owners of the DTC Notes will be
represented by book entries on the records of DTC and participating
members thereof. Definitive certificates for the DTC Notes will be
made available only under the limited circumstances specified in
the Indenture. Except as otherwise provided in the related Terms
Agreement, each Class of Notes of a Series sold to the Underwriter
as definitive notes pursuant to such Terms Agreement will be in
definitive, fully registered form, in such denominations and
registered in such names as the Underwriter shall request, and will
be made available at least 24 hours prior to the applicable Closing
Date, for checking and packaging at the offices of
Hunton & Williams LLP, Riverfront Plaza, East Tower, 951
E. Byrd Street, Richmond, Virginia 23219 in such amounts as
determined pursuant to the Terms Agreement.
The Depositor and the Underwriter
have agreed that the Delivery Date will be the date as set forth in
the related Terms Agreement.
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4. Offering by Underwriter .
It is understood that the Underwriter propose to offer the Notes
subject to this Agreement for sale to the public as set forth in
the Prospectus.
(a) It is understood that the
Underwriter will solicit offers to purchase the Notes as
follows:
(i) Prior to the time the
Underwriter has received the Approved Offering Materials, the
Underwriter may, in compliance with the provisions of this
Agreement, solicit offers to purchase Notes; provided, that the
Underwriter shall not accept any such offer to purchase a Note or
any interest in any Note or Mortgage Loan or otherwise enter into
any Contract of Sale for any Note, any interest in any Note or any
Mortgage Loan prior to the investor’s receipt of Approved
Offering Materials.
(b) It is understood that the
Underwriter will not enter into a Contract of Sale with any
investor until the investor has received the Approved Offering
Materials with respect to the Notes of such investor which are the
subject of such Contract of Sale. For purposes of this Agreement,
Contract of Sale has the same meaning as in Rule 159 of the Rules
and 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.” Each
Contract of Sale for a Note entered into by the Underwriter shall
expressly provide in writing that the Depositor is not obligated to
issue such Note or any similar security and that the obligation of
the Underwriter to deliver such Note is subject to the terms and
conditions of this Agreement and the availability of such Note
when, as and if issued by the Depositor.
(c) It is understood that the
Underwriter may provide to prospective investors certain Issuer
Free Writing Prospectuses and prepare and provide to prospective
investors Underwriter 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 Underwriter shall not convey or deliver any written
communication to any person in connection with the initial offering
of the Notes, unless such written communication (i) is made in
reliance on Rule 134 under the Act, (ii) constitutes a
prospectus satisfying the requirements of Rule 430B under the Act
or (iii) constitutes a Free Writing Prospectus (as defined
below).
(ii) The 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 Rules and Regulations and all Commission
guidance relating to Free Writing Prospectuses, including but not
limited to Commission Release No. 33-8591.
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(iii) For purposes hereof,
“Free Writing Prospectus” shall have the meaning given
such term in Rules 405 and 433 of the Rules and Regulations. For
purposes hereof, “Issuer Free Writing Prospectus” shall
have the meaning given such term in Rule 433(h) of the Rules and
Regulations, and “Underwriter Free Writing Prospectus”
shall mean all Free Writing Prospectuses other than Issuer Free
Writing Prospectuses. “Issuer Information” shall have
the meaning given such term in Rule 433 (h) of the 1933 Act
Regulations, including the information specified in footnote 271 of
Commission Release No. 33-8591 (Securities Offering Reform)
and “Derived Information” shall refer to information of
the type described in clause (5) of such footnote 271 when
prepared by the Underwriter. Consistent with such definition,
“Issuer Information” shall not be deemed to include any
information in a Free Writing Prospectus solely by reason of the
Depositor’s review of the materials pursuant to subsection
(d) below. For purposes hereof, “ABS Informational and
Computational materials” shall have the meaning given such
term in Item 1101 of Regulation AB.
(d) All Free Writing Prospectuses
provided to prospective investors, whether or not filed with the
Commission, shall bear a legend including the following
statement:
“THE ISSUER 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 FOR FREE 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 IF YOU REQUEST IT BY CALLING TOLL-FREE
1–8[XX–XXX–XXXX].
(e) The Underwriter shall deliver to
the Depositor and its counsel, no later than the business day prior
to the proposed date of first use thereof, any Free Writing
Prospectus prepared by or on behalf of the Underwriter that
contains any Issuer Information and request that such Free Writing
Prospectus be filed with the Commission within the time period
specified in the Rules and Regulations.
(f) If the Underwriter does 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 it did not provide any
prospective investors with any information in written or electronic
form in connection with the offering of the Notes
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that is required to be filed with
the Commission in accordance with the Rules and
Regulations.
5. Covenants of the Depositor
. The Depositor covenants and agrees with the Underwriter
participating in the offering of the applicable Series of Notes
that:
(a) Immediately following the
execution of the related Terms Agreement, the Depositor will
prepare a Prospectus Supplement setting forth the amount of Notes
of the related Series covered thereby and the terms thereof not
otherwise specified in the Base Prospectus, the price at which such
Notes are to be purchased by the Underwriter, from the Depositor,
either the initial public offering price or the method by which the
price at which such Notes are to be sold will be determined, the
selling concessions and reallowances, if any, and such other
information as the Underwriter and the Depositor deem appropriate
in connection with the offering of such Notes, but the Depositor
will not file, for so long as the delivery of a Prospectus is
required in connection with the offering or sale of such Notes, any
amendments to the Registration Statement as in effect with respect
to such Notes, or any amendments or supplements to the related
Prospectus, unless it shall first have delivered copies of such
amendments or supplements to the Underwriter, or if the Underwriter
shall have reasonably objected thereto promptly after receipt
thereof, the Depositor will, during such period, immediately advise
the Underwriter or its counsel (i) when notice is received
from the Commission that any post-effective amendment to the
Registration Statement has become or will become effective and
(ii) of any order or communications suspending or preventing,
or threatening to suspend or prevent, the offer and sale of the
Notes or of any proceedings or examinations that may lead to such
an order or communication, whether by or of the Commission or any
authority administering any state securities or Blue Sky law, as
soon as the Depositor is advised thereof, and will use its best
efforts to prevent the issuance of any such order or communication
and to obtain as soon as possible its lifting, if issued. The
Depositor will use its best efforts to prevent the issuance of any
stop order suspending the effectiveness of the Registration
Statement and, if issued, to obtain as soon as possible the
withdrawal thereof. The Depositor will file such Prospectus
pursuant to Rule 424 under the Act not later than the
Commission’s close of business on the second Business Day
following the availability of the Prospectus to the
Underwriter.
(b) If, at any time when a
Prospectus or a Free Writing Prospectus relating to the Notes of
the related Series is required to be delivered under the Act, any
event occurs as a result of which the Free Writing Prospectus or
Prospectus as then amended or supplemented would include any untrue
statement of a material fact or 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, or if
it is necessary at any time to amend or supplement the Prospectus
to comply with the Act or the Rules and Regulations, the Depositor
will promptly prepare and file with the Commission, an amendment or
supplement that will correct such statement or omission or an
amendment that will effect such compliance.
(c) The Depositor will cause any
Free Writing Prospectuses with respect to the Notes of a Series to
be filed with the Commission pursuant to Rule 433 under the
Act
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in accordance with Section 8
prior to the time of filing of the Prospectus as provided in
Section 5(a) hereof and will include therein all such
materials so furnished; provided, however, that the Depositor shall
only be responsible for the filing of a Free Writing Prospectus
prepared by the Underwriter as described in Section 4(e)
hereof to the extent delivered by the Underwriter within the time
period specified in Section 4(e) hereof.
(d) The Depositor will cause the
Trust Administrator to furnish or make available, within a
reasonable time after the end of each calendar year, to each holder
of a Note (each, a “Noteholder”) at any time during
such year, such information as is necessary or desirable to assist
Noteholders in preparing their federal income tax
returns.
(e) The Depositor will furnish to
the Underwriter copies of the Registration Statement (two of which
will be signed and will include all documents and exhibits thereto
or incorporated by reference therein), each related preliminary
prospectus, the Prospectus and all amendments and supplements to
such documents relating to the Notes of the related Series, in each
case as soon as available, and in such quantities as the
Underwriter reasonably requests.
(f) The Depositor will arrange for,
and will pay all expenses (including reasonable fees and expenses
of counsel) in connection with the qualification of the Notes of
the related Series for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as
the Underwriter designates and will continue such qualifications in
effect so long as required for the distribution of the Notes;
provided, however, that neither the Depositor nor the Trust shall
be required to do business in any jurisdiction where it is now not
qualified or to take any action which would subject it to general
or unlimited service of process in any jurisdiction in which it is
now not subject to service of process.
(g) The Depositor will, while the
Notes of a Series are outstanding furnish to the Underwriter,
information with respect to the related Trust or the Mortgage Loans
included in the related mortgage pool, as the Underwriter may
reasonably request, including but not limited to information
necessary or appropriate to the maintenance of a secondary market
in the Notes of such Series.
(h) The Depositor, whether or not
the transactions contemplated under the related Terms Agreement are
consummated or the related Terms Agreement is terminated, will pay
all expenses incident to the performance of its obligations under
this Agreement and the Terms Agreement and will reimburse the
Underwriter for any expenses (excluding fees and disbursements of
its counsel, any Underwriter due diligence of the Mortgage Loans
and accounting comfort letters obtained in connection with any
Underwriter Free Writing Prospectus) incurred by them in connection
with (i) the offering and the qualification of the related
Series of Notes, (ii) the preparation of all documents
described herein, including any Issuer Free Writing Prospectus,
(iii) reasonable fees and expenses of the Servicer,
Subservicer, Owner Trustee, Indenture Trustee and Trust
Administrator, (iv) the investigation by the Underwriter of
the Seller, the Depositor and the Mortgage Loans, (v) the
determination of their eligibility for investment under the laws of
such jurisdictions as the Underwriter may designate and
the
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reproduction of memoranda relating
thereto, (vi) any fees charged by investment rating agencies
for the rating of the Notes and (vii) reasonable and customary
expenses incurred in distributing any prelimina
